Health: Sexually Transmitted Diseases

Lord Fowler: asked Her Majesty's Government:
	How they assess the success of their policies to prevent HIV/AIDS and other sexually transmitted diseases.

Lord Hunt of Kings Heath: My Lords, our policies to prevent HIV and other sexually transmitted infections are assessed through a number of measures. These include monitoring the local NHS delivery plans, including the national target on 48-hour access to GUM services, evaluation of mass media campaigns and data on new diagnoses from the Health Protection Agency.

Lord Fowler: My Lords, is it not a fact that the latest figures show that compared with 1998, new diagnoses of HIV have risen by 165 per cent and of chlamydia by 125 per cent, and that inside the health service, money intended for sexual health has been diverted away for other purposes? Is that not a totally unsatisfactory and unhappy position and is it not time that the Government mounted a concerted and properly financed campaign on sexual health in this country?

Lord Hunt of Kings Heath: My Lords, I pay tribute to the noble Lord for his work on and involvement in the 1986 AIDS campaign programme. But the circumstances are different now—much less was known then, and the programme targeted the whole population. We now know that the main area of concern around HIV and AIDS is for gay men and those with contact with various parts of the world where the disease is prevalent, and the programme of action the department has enunciated is targeted at those at-risk groups.
	The noble Lord is right to refer to some rises in instances of sexual illness. This is a priority for the Government and a great deal of progress is being made, particularly in developing enhanced GUM services.

Baroness Massey of Darwen: My Lords, does the Minister agree that sex education is very important in combating sexually transmitted infections? If so, will he say how the Department of Health and the Department for Education and Skills are collaborating to improve the situation with regard to young people?

Lord Hunt of Kings Heath: My Lords, I agree with my noble friend. I can reassure her that my department and the Department for Education and Skills work very closely together to promote sexual health through the healthy schools programme. It is worth reporting that there has been a reduction in teenage pregnancy rates: between 1998 and 2005, the under-18 conception rate fell by 11.8 per cent, evidence that the programmes that have been developed are proving effective.

Baroness Barker: My Lords, given that the AIDS Funders Group report showed that services, particularly those of prevention and support, are being stopped and then started again only because different commissioning streams come on stream at different times, does the Minister agree that there is something ineffective and wasteful about the way services are being commissioned by the NHS?

Lord Hunt of Kings Heath: No, my Lords. Local primary care trusts have first responsibility for ensuring that services are commissioned appropriately and it is important that they should do so. Of course we want to see consistency in that approach, but the fact that PCTs have enhanced GUM services and that the target we set for people to receive an appointment within 48 hours has now been achieved—70 per cent as compared with 45 per cent in May 2005—shows that they are having a positive impact.

Lord Tebbit: My Lords, when the Minister referred to a fall in teenage pregnancies, did he mean a fall in pregnancies commenced or in births to teenage girls?

Lord Hunt of Kings Heath: My Lords, I am referring to the provisional 2005 under-18 conception rate, which is 41.1 per thousand girls aged 15 to 17. That represents an overall decline of 11.8 per cent since 1998. The under-18 conception rate is at its lowest for 20 years, which is very encouraging.

Lord Roberts of Conwy: My Lords, is the Minister fully aware of the very strong impact of the campaign initiated by my noble friend Lord Fowler when he was Secretary of State? Is it not time that we had a similar campaign now?

Lord Hunt of Kings Heath: My Lords, I am aware of the effect of the noble Lord's leadership at the time, which I have already commended and I am happy to commend again. He will know that I was then director of the National Association of Health Authorities and there was close collaboration between him and his department and the National Health Service on those issues. At the time, very little was known about HIV/AIDS, which is why a campaign aimed at the general population was the most appropriate. However, we now understand that the groups at increased risk of HIV sexual transmission remain gay men and people who have had links to countries overseas where there is a high prevalence of HIV/AIDS, such as sub-Saharan Africa. The campaigns that the department is involved in funding are focused on those groups.
	Of course, other sexual health campaigns are targeted at the general population, including encouraging the use of condoms and responsible sexual behaviour. Those, too, are very important in ensuring that we grip this issue.

Lord Colwyn: My Lords, does the Minister agree that the most important policy to prevent AIDS and many other diseases is the development and maintenance of an effective immune system?

Lord Hunt of Kings Heath: My Lords, I am sure that that is right. Good sexual health is one aspect of a healthy lifestyle in general, which we must do more to encourage.

Lord Patel: My Lords, what is the Government's strategy for the availability of HPV vaccine for the prevention of cervical cancer, which is a sexually transmitted virus?

Lord Hunt of Kings Heath: My Lords, my understanding is that uptake of the first dose of hepatitis B vaccine should be 90 per cent by the end of 2006 and uptake of three doses of hepatitis B vaccine in those not previously immunised within one of the recommended regimens is targeted to be 70 per cent by the end of 2006. Clearly, we are working hard to meet those targets. The figures for 2005 are 89 per cent for the first dose of vaccine and 39 per cent for uptake of three courses of vaccine.

EU: Energy Policy

Lord Dykes: asked Her Majesty's Government:
	Whether adequate progress is being made in the creation of a common energy policy for the European Union.

Lord Truscott: My Lords, since our 2005 presidency, the EU has made great progress in developing a common energy policy. Following the Commission's January strategic energy review, the European Council recently adopted an ambitious set of measures to address our common energy and climate change challenges.

Lord Dykes: My Lords, I thank the Minister for that Answer. He will recall that this specific common policy was requested strongly by member Governments. The Commission, too, is understandably preoccupied with common imperatives such as secure energy supplies, common technologies and new sources. However, will the Government also specifically suggest to the Commission that it should now start developing the ideal European-wide eco-dwelling as a target project for builders and estate developers throughout the single market, including in Germany, which was a pioneer, and in Britain?

Noble Lords: Reading!

Lord Dykes: My Lords, is the Minister aware that the ideal passive eco-model can be produced to consume only 15 kilowatt hours per square metre per annum, against the staggering 200 kilowatt hours per square metre per annum of the classic conventional dwellings?

Lord Truscott: My Lords, I thank the noble Lord for his question. He is very knowledgeable on European affairs, as he has displayed again this afternoon. He will be aware that the European Council came to the decision that the EU should reduce carbon greenhouse gas emissions by 20 per cent by 2020 unilaterally and up to 30 per cent if developed countries act together internationally. Eco-dwelling is an interesting idea, but the noble Lord will know that the UK Government are committed to having carbon-free dwellings by 2016 in the UK.

Lord Forsyth of Drumlean: My Lords, should the Government's priority not be in respect of our domestic energy policy and the requirement to ensure security of supply? Does that not mean committing to building nuclear power stations now on existing sites before the lights go off—because when the lights go off Governments get thrown out?

Noble Lords: As you know!

Lord Truscott: My Lords, some noble Lords have said that the party opposite knows that full well. The Government are very aware of the issues that the noble Lord mentioned. The White Paper that we are producing on energy has two drivers: first, the issue of security of supply and, secondly, tackling climate change. He will be aware that the Government are producing the White Paper in May, which will contain the Government's proposals and views on nuclear, subject to further consultation.

Lord Tanlaw: My Lords, could the Minister say that as part of the harmonisation process of energy with Europe, daylight saving is on the books, as that would save energy and lives on the road? If the Government are not thinking about this, could he go on record as saying that he is not for daylight saving in any form or kind?

Lord Truscott: My Lords, I would be very happy to answer that question but perhaps at another time, as I think that we are straying quite widely from the Question.

Lord Teverson: My Lords, the Government at the European Council last month agreed a binding commitment with other EU member states of renewable energy becoming 20 per cent of total energy use by 2020. Given that at the moment the UK's renewable percentage is 1.5 per cent, making us 26th equal out of 27 member states, how are we going to meet whatever our target becomes?

Lord Truscott: My Lords, clearly the 20 per cent target for renewable energy was stretching and visionary, but it is important because it will give a huge boost to the deployment of renewables, not only in the UK but throughout the European Union. Under this Government we have seen a doubling of renewable energy, with something like 100,000 microgeneration installations in the UK. We have invested something like £500 million in renewables between 2002 and 2008, and the renewables obligation will be worth something like £1 billion to the renewables industry by 2010. We are taking a lot of measures in this area and we will have to work with the Commission and other member states to ensure that the targets are met appropriately.

Lord Dixon-Smith: My Lords, given the very great difficulty that the Common Market has had in agreeing pricing arrangements for emissions trading across Europe, which is at least an attempt to arrive at an agreement, and given the widely differing national circumstances with regard to energy supply, does the Minister really think it very likely that in the foreseeable future there is any chance of an agreement on a common energy policy?

Lord Truscott: My Lords, that is exactly what the spring European Council agreed on—a common energy policy and an action plan for that policy. Of course, there is a lot of work to be done and the UK Government support the position of the European Commission that the Emissions Trading Scheme that the noble Lord mentioned should be strengthened, particularly in its third phase.

Baroness Thomas of Walliswood: My Lords, what progress has been made in altering building regulations to encourage the maximum use of proper insulation, installation of solar power and so on?

Lord Truscott: My Lords, the noble Baroness will be aware that the Department for Communities and Local Government recently announced a consultation particularly on microgeneration, to ensure that those people who apply to install, for example, wind turbines or solar energy panels on their homes do not in all circumstances need to apply for planning permission. That will greatly encourage microgeneration installation in people's homes. Individual homes are responsible for some 25 per cent of CO2 emissions in the UK. We anticipate up to 1.3 million of those types of microgeneration installations in coming years.

Baroness Wilcox: My Lords, I had the privilege of attending a House of Lords delegation to Russia and Siberia, from which I have just returned, where I looked at the security of energy supply that we can expect from Russia. I come back absolutely determined that we should try to sort it out in Europe. What discussions has the Minister had with his European counterparts about the essential liberalising and unbundling of the European market?

Lord Truscott: My Lords, we discussed the unbundling of the EU internal market at the previous Energy Council. This will be further discussed at the coming European Council. The Commission will bring forward proposals on unbundling this year. The UK Government firmly support its position on unbundling.

Prime Minister: Oversight

Baroness Miller of Hendon: asked Her Majesty's Government:
	What oversight exists of (a) the advice given by the Prime Minister on the exercise of the royal prerogative; and (b) the exercise of the Prime Minister's executive powers.

Lord Falconer of Thoroton: My Lords, Prime Ministers are, and will continue to be, accountable to Parliament for the vast majority of their decisions.

Baroness Miller of Hendon: My Lords, the Minister's Answer was not terribly helpful; nevertheless, I thank him most sincerely. Will he please comment on reports that Cabinet meetings under the present Prime Minister are much briefer than those under previous Prime Ministers and that often vital Cabinet papers are not circulated in advance to his Cabinet colleagues, so enabling him to adopt a presidential style rather than remembering that his power has been described as primus inter pares?

Lord Falconer of Thoroton: My Lords, although I was not privileged to be in any previous Prime Minister's Cabinet, I can tell the noble Baroness that the Cabinet meetings conducted by the present Prime Minister are round-table. Business is conducted efficaciously.

Lord Swinfen: My Lords, the noble and learned Lord said that Prime Ministers were responsible to Parliament for the vast majority of their decisions. For what decisions are they not responsible to Parliament?

Lord Falconer of Thoroton: My Lords, certain decisions would have to be kept secret for reasons of national security. Inevitably, Prime Ministers do not bring all those before Parliament.

Lord Marsh: My Lords, does the Minister agree that this does not sound the same as the doctrine of collective responsibility, which is at least turning up at the edges?

Lord Falconer of Thoroton: My Lords, there is absolutely no inconsistency between what I have said and collective responsibility: an efficient, effective Government, all agreeing on the sensible issues, discussing them beforehand, reaching agreements and then standing by them.

Lord Maclennan of Rogart: My Lords, is not the time ripe for Britain to complete the new constitutional settlement, apt for the 21st century, embodied in a written constitution, reflecting the will of the people, in which, furthermore—unlike the arrangements in the 18th century, which we have inherited—by virtue of the royal prerogative, in accordance with the enacted will of the people, the Government's actions are subject to the advice and consent of Parliament in all circumstances?

Lord Falconer of Thoroton: My Lords, that was quite a contradictory question. I am not in favour of a written constitution because I believe that the will of the people is expressed through Parliament, as the question implied. If you have a written constitution in the true sense, you have a document that is superior to Parliament, which means that the judges, whom I admire in every single respect—I am looking around at the number of judges—could express views about whether particular Acts were lawful. Our system, with judges able to ensure that the law is properly applied but Parliament able to pass the law, is the right one. I have no problem with our values being expressed in a document, but not in one that is superior to parliamentary sovereignty.

Baroness Trumpington: My Lords—

Lord Tebbit: My Lords, does the noble and learned Lord recollect that when the Prime Minister tried to abolish the post of Lord Chancellor, it was discovered that this House could not meet unless there was a Lord Chancellor? Was that discussion around the Cabinet table thorough and vigorous?

Lord Falconer of Thoroton: My Lords, happily, the Lords met very quickly thereafter. The announcement involved accepting that there would have to be a Lord Chancellor during the transition. I am still, as noble Lords can see, in a transitional phase. After detailed consideration by this House and another place, the essential policy changes that underlay that announcement were given effect to.

Lord Wedderburn of Charlton: My Lords, the noble and learned Lord mentioned the judges and especially the Law Lords. The House will recall that in the discussion of Law Lords' place here, which is to end, he delivered extended speeches, if not homilies, on the separation of powers. In other jurisdictions, the separation of powers is understood to mean some division between the Executive and the legislature. Does the noble and learned Lord think that attention need not be paid to that division, which is recognised elsewhere?

Lord Falconer of Thoroton: No, my Lords; our system, where the Executive are drawn primarily from the elected House of Commons, works extremely well. A separation that everyone would accept is that judges and legislators should not be in the same body. I apologise for the length of my speeches, and I apologise if they sounded like homilies, but that was the essential point in creating a Supreme Court.

Lord Waddington: My Lords, the noble and learned Lord did not make much of a fist of his answer to my noble friend. Was there any discussion in Cabinet before it was announced by way of a press release that the office of Lord Chancellor was to be abolished?

Lord Falconer of Thoroton: My Lords, the noble Lord will recall that I was not in the Cabinet at that point.

Lord Stoddart of Swindon: My Lords—

Baroness Williams of Crosby: My Lords—

Baroness Amos: My Lords, it is the turn of the Liberal Democrats.

Baroness Williams of Crosby: My Lords, may I bring the noble and learned Lord back to the issue of the royal prerogative? In his stout defence, quite rightly, of accountability to Parliament, would he not agree that the fact that Parliament has no voice whatever on the treaties signed by Her Majesty's Government is a very substantial problem in a modern democracy? Does he agree that it is high time that the two Chambers of our Parliament began to set up machinery to enable Parliament to be heard on the issue before the signing of significant treaties?

Lord Falconer of Thoroton: No, my Lords, I do not agree with that proposition. The noble Baroness is right to some extent, in that it is for the Executive to conduct the foreign policy of this country. If they conducted foreign policy that went beyond that which was acceptable to Parliament, they would quite quickly lose the confidence of the Commons. Secondly and separately, if after a treaty has been signed it is intended to make it part of the law of this country, Parliament needs to make that happen, and that requires parliamentary approval.

Special Advisers

Lord Campbell-Savours: asked Her Majesty's Government:
	Whether, in view of the provisions of the Civil Service Code, the Code of Conduct for Special Advisers and the employment contract for special advisers, the Chancellor of the Exchequer will review the arrangements for the employment of HM Treasury's special advisers in the light of criticisms made of Members of Parliament by a special adviser; and whether the arrangements for the state funding of political advisers will be reviewed.

Lord Davies of Oldham: My Lords, the employment of special advisers in Her Majesty's Treasury is in accordance with the Code of Conduct for Special Advisers and the Model Contract for Special Advisers. The Government's position on the funding of special advisers remains as set out in their response to the Session 2000-01 report of the Public Administration Select Committee on special advisers.

Lord Campbell-Savours: My Lords, was not the attack by the Chancellor of the Exchequer's special adviser on the MPs for Darlington and North Tyneside totally in breach of paragraph 14 of the Code of Conduct for Special Advisers, paragraph 15c of the contract of employment of special advisers and paragraphs 12 and 13 of the Civil Service Code? Why, when 11 Written and Oral Questions have been asked over four and a half months, does the Treasury still refuse to respond on this issue? Does not the deafening silence of the Treasury on these breaches make a mockery of the solemn undertaking given to Parliament in 2004, which guaranteed the accountability of Ministers to Parliament for the actions of special advisers?

Lord Davies of Oldham: My Lords, the relevant Minister is responsible both for the appointment of special advisers in his or her department and for their conduct. My noble friend would not expect me to discuss a specific case at the Dispatch Box, but let us be absolutely clear that parliamentary accountability rests with the Minister who has appointed the special advisers. When there have been contributions and Questions, such as those that my noble friend has asked over a protracted period, lessons are learnt by special advisers about the dangers of communications with the press and the importance, as my noble friend has reiterated, of keeping out of public political controversy.

Lord Maclennan of Rogart: My Lords, given that the number of special advisers has more than doubled since this Government took office and given that their role in the public service was secretively enhanced by amendment to the Civil Service Order in Council in 2005, will the Government now enact a Civil Service Bill to remove the possibility of recruiting personnel into the Civil Service outside normal merit-based arrangements?

Lord Davies of Oldham: My Lords, this country glories in the fact that its Civil Service is non-political. Also, of course, we have 3,900 senior civil servants. It is important that political advisers who give political advice are separate from that apolitical—non-political—Civil Service. That is why we have special arrangements for them, both in their appointment and in accountability for their actions through the Minister.

The Countess of Mar: My Lords, has the special adviser concerned either resigned or been sacked? If not, can the Minister say what the point is of having the codes, listed by his noble friend, in the first place?

Lord Davies of Oldham: My Lords, the codes are to ensure that political advisers know exactly what their responsibilities are. It is for the Minister to form a judgment on whether the code has been transgressed. Although my noble friend has contended that the code has been transgressed, the judgment of the Minister is different from that of my noble friend.

Lord Marlesford: My Lords, as I learnt from my experience as a member of an earlier and much smaller brood of special adviser, the less one said outside Whitehall, the more one could discover inside Whitehall and, therefore, the more use one could be to Ministers. Does the Minister agree?

Lord Davies of Oldham: My Lords, I hesitate to suggest that that is the basis of the code, but I certainly think that special advisers are all too well aware, first, of the basis of the code to which they are obliged to subscribe and, secondly, as the noble Lord has indicated, that their public role is circumscribed by that code. If they err in any respect—and I am not saying that they ever do—it is to be anticipated that there will be a public reaction.

Lord McNally: My Lords, would the Minister confirm that some special advisers have gone on to live worthwhile and productive lives? Does not any fault of the current pack of special advisers to the Treasury pale into insignificance compared with that of the special adviser who stood at the shoulder of Mr Norman Lamont while we lost billions across the exchanges on Black Wednesday? If noble Lords cannot remember his name, I can tell them that it was Cameron—David Cameron.

Lord Davies of Oldham: My Lords, in order to save the noble Lord's blushes, perhaps we should constrain ourselves to the past decade and a half and not go any further back as far as special advisers are concerned. I cannot recall anyone who has made a more noble contribution to the nation than that made by those in the role of special adviser properly discharged. Special advisers do a proper job, which is highly valued. That is why successive Governments have been concerned to ensure the continuation of the role within the framework of clearly prescribed codes.

Business

Lord Grocott: My Lords, with the leave of the House, at a convenient time after 4 pm a Statement on Iraq will be repeated by my noble friend Lord Drayson.

House Committee

Economic Affairs Committee

Lord Brabazon of Tara: My Lords, I beg to move the two Motions standing in my name on the Order Paper.
	House Committee
	Moved, That Lord Baker of Dorking be appointed a member of the Select Committee in the place of Lord Renfrew of Kaimsthorn, resigned.
	Economic Affairs
	Moved, That Lord Griffiths of Fforestfach be appointed a member of the Select Committee in the place of Lord MacLaurin of Knebworth, resigned.—(The Chairman of Committees.)

On Question, Motions agreed to.

Parliament (Joint Departments) Bill [HL]

Report received.

Legal Services Bill [HL]

Report received.
	Clause 1 [The regulatory objectives]:

Baroness Ashton of Upholland: moved Amendment No. 1:
	Clause 1, page 1, line 5, at end insert—
	"( ) protecting and promoting the public interest;"

Baroness Ashton of Upholland: My Lords, I shall speak also to Amendments Nos. 31, 32, 115, 116 and 331.
	The Government have given very serious consideration to the view expressed by noble Lords in Committee that recognition of the public interest should be given greater prominence in the Bill. I thank all those who took part in those debates and who subsequently gave me the benefit of their advice on how I might take this issue forward. I was very persuaded by the views expressed, and I now bring to your Lordships' House this group of amendments to alter provisions in the Bill which deal with the public interest in a way that I hope noble Lords will feel able to support.
	In Committee, noble Lords felt that there were two principal ways in which we could achieve this objective, and I want to explain why I have taken the approach that I have. I resisted the initial thoughts of the noble Lord, Lord Kingsland, who sought to add the public interest to the objective of protecting and promoting consumers' interests, which noble Lords will find at Clause 1(1)(c). I said in Committee that I was concerned that that had the potential to create confusion because, as noble Lords indicated, the consumer interest and the public interest may not always coincide. Although we expect to see a healthy tension between individual objectives, I want to try to prevent the creation of tension within each objective. Therefore, I was more attracted to the proposition of the noble Lord, Lord Thomas of Gresford, who cannot be with us today. He proposed creating a new regulatory objective to protect and promote the public interest, which I felt had the clear advantage of recognising the need to protect and promote the public interest as an important objective in its own right.
	As a consequence of setting out this duty as a regulatory objective, it is necessary to remove the existing duty to have regard to the public interest at Clauses 3, 27 and 113. I beg to move.

Lord Carlile of Berriew: My Lords, in the absence of my noble friend Lord Thomas of Gresford, who is in sunnier climes—although, I hasten to say, working very hard—I thank the Minister for the important concession made in these amendments. The specificity of the public interest within the statute is, in our view, a matter of considerable importance, and it is of course of paramount importance that the Government have accepted that. So we support the amendments.

Lord Kingsland: My Lords, we, too, support the Government's amendment, although, more generally, we are extremely disappointed by their reaction to other key clauses in the remainder of the Bill.
	Our original amendment was to link the consumer interest and the public interest simply because we felt that, by aligning the two, the Legal Services Board would be compelled to balance the two fundamental concepts that ought to lie at the root of the Bill. However, I am extremely happy to yield to the greater perspicacity of the noble Lord, Lord Thomas of Gresford.
	I am not surprised that the Government have been able to concede this point to your Lordships. It would have been extremely difficult for the noble Baroness to refuse to insert in the Bill as one of its objectives that the public interest would be respected. I note that the noble Baroness nods as I speak. Nevertheless, we are of course extremely pleased to see the amendment there.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord. I always like to try to begin on a high however much the noble Lord may fear that I will descend to a low from his perspective. With regard to the public interest, I do not think that there has ever been anything much between us on the issues, which we will find as we go through the Report stage; it is a question of how to achieve them. I listened with great care to the need to stamp the question of public interest further in the Bill. There was never a desire on my part not to recognise it. We have found a way through and I am grateful for the support.

On Question, amendment agreed to.
	[Amendment No. 2 not moved.]

Lord Kingsland: moved Amendment No. 3:
	Clause 1, page 1, line 9, at beginning insert "subject to the objectives in paragraphs (a) to (c),"

Lord Kingsland: My Lords, the noble Baroness will recall the exchanges on this amendment over the Dispatch Box in Committee. In particular, I hope that she will recall that two questions were at issue. The first was whether the competition objective ought to be subservient to the first three objectives in Clause 1(1); that is, whether it ought to bite only if the Legal Services Board was satisfied that the first three objectives had been achieved. The noble Baroness's response, consistent with responses on Clause 1 in other respects, was to say that in her judgment all seven—now eight—objectives of the clause should carry equal weight, and that the Legal Services Board should exercise its judgment freely as between the appropriate weight given.
	As the noble Baroness has not tabled an amendment on this issue, it is reasonable to conclude that that remains the Government's position. It is now up to us to decide whether to put the matter to a vote. However, there was another dimension to the amendment, to which the noble Baroness promised to give further consideration. Clause 1 provides that the competition responsibilities of the Legal Services Board apply only to anti-competitive behaviour by "authorised persons".
	It is perfectly understandable that that should have been the Government's approach as the Competition Commission and the OFT have no responsibilities in that area. However, the Bill is by no means silent on the responsibilities of those organisations. The Minister will recall that there are detailed provisions in Clauses 56 to 60 about the responsibilities of the OFT and the Competition Commission over the competitive behaviour of the regulators themselves. An extremely elaborate procedure is laid down whereby the OFT draws up a report and reports to the Secretary of State. There is then a provision for the Secretary of State to go to the Competition Commission for a further report on the same matter.
	We have two competition authorities, therefore, dealing with the responsibilities of the regulators on the one hand and the authorised persons on the other. My concern, as the Minister well knows, is over the confusion and conflict between the competition responsibilities of the OFT, the Secretary of State and the competition authority on the one hand and the Legal Services Board on the other. It is hard to see how you can compartmentalise anti-competitive behaviour in a regulator which will inevitably have an effect on the competitive behaviour of an authorised person. How, in those circumstances, can you unpack the anti-competitive conduct so as to divide the responsibilities as clearly as the Bill does? I beg to move.

Lord Campbell of Alloway: My Lords, briefly, I support the amendment. It is a requisite for the reasons given by my noble friend Lord Kingsland, but it is more than that. It is a form of consolidation between old Amendments Nos. 1 and 2, in which there was an element of division. For various reasons which I shall not repeat, I went for old Amendment No. 1 but my noble and learned friend Lord Lyell of Markyate went for old Amendment No. 2. In effect, the amendment removes any form of discrepancy in the drafting, achieving a result which ought to be accepted by the House for the reasons given by my noble friend.

Lord Maclennan of Rogart: My Lords, briefly, I support this amendment for the reasons I set out in Committee. The Minister was then good enough to say that she did not disagree with what I was saying. That led me to think that she would in due course consider what had been said and that there would be a positive response. I hope that that will be forthcoming.

Baroness Ashton of Upholland: My Lords, agreeing with what the noble Lord, Lord Maclennan of Rogart, says is something I always try to do, not least because he offers a great deal of sense in our debates, along with other noble Lords who have spoken. That does not necessarily mean, however, that I feel the need to amend the Bill; rather, as you would expect, it means that I would take it away and consider whether we ought to do more.
	David Clementi was clear that you should not try to rank the regulatory objectives in the Bill, prioritising some over others, because that could create difficulties. Rather, he said, it was for the regulatory body to determine what weight to give at various points, depending on the issue before it. The Government have taken that approach, in line with what he said. He concluded that,
	"it should be for the Regulator, operating a risk based approach to regulation, to judge the relative importance of each consideration on a case by case basis".
	We have consistently said that, and have acted upon the Joint Committee's recommendation that the Explanatory Notes should make it explicit that the objectives are not listed in order of importance. We took it on board and dealt with it as appropriately as we could.
	Effective competition is an important part of ensuring that good services are provided. The briefing given out by Which? quotes something from the Financial Times which struck me as I read it over the weekend—that:
	"Competition delivers results in ways that government bureaucrats",
	which I guess includes me,
	"cannot anticipate. Consumers can expect more choice, innovative services and lower prices".
	Those are important aspects of the provision of good, high-quality services. They may not be of a higher importance than the other objectives in all circumstances, but they are none the less important in certain circumstances. Therefore, we have deliberately not ranked the objectives, but left it for the regulatory body, which we think is the right place, to determine in the specific circumstances we are dealing with what weight to give—as the noble Lord, Lord Kingsland, said, the appropriate weight. That is why I resist the amendment.
	As regards the difference between what happens in the later clauses—I think the noble Lord, Lord Kingsland, mentioned Clause 55—in terms of the anti-competitive role of the Office of Fair Trading and what is going on in the earlier clauses, Clause 1 applies to services provided by authorised persons, and Clauses 3 and 27 require the board and approved regulators to apply these objectives. Any rule maintained by an authorised body which restricts competition can be duly struck down by the board. It can do so following advice from the OFT under Clause 56. Clause 1, in particular, ensures that competition is understood by authorised persons and that they operate bearing in mind competition. Regulatory bodies and the role of regulation with the OFT comes in later clauses.
	In drawing up the clauses we consulted the OFT, of course. If all else fails, I can rely on the fact that the Office of Fair Trading is comfortable and happy that we have dealt with these issues appropriately by giving it a clear role in terms of the legislation while seeking to promote competition where appropriate, for the reasons that it has outlined of the potential benefit to the public in general and, obviously, consumers of legal services in particular.

Lord Kingsland: My Lords, I am most grateful to the noble Baroness for responding to both points I raised. I take the second first. I entirely accept that the Government have rightly identified two distinct areas in which competition law should operate, and have provided four distinct authorities. On one hand the LSB deals with anti-competitive practices by the individual authorised person; and on the other hand you have, as far as concerns the regulators, a triumvirate of the OFT, the Secretary of State and the Competition Commission.
	I respectfully agree with the noble Baroness that the provisions in the Bill, although highly complex and potentially hugely expensive for this regime, make sense in principle. My concern is about how they will operate in practice; because if you identify anti-competitive behaviour, for example, between authorised persons, which you trace back to an anti-competitive provision in the rules of the regulator, how will you sort that out without some liaison between the LSB on one hand and the other three authorities on the other?
	That question leads me to ask whether the noble Baroness believes there is sufficient provision in the Bill for guidance to be given on this issue so as to ensure that, operationally, the relative roles of these institutions are clearly understood. This regime is paid for by the authorised persons. Clauses 56 to 60 are intensely complicated and potentially hugely expensive. I believe that the authorised persons have a right to know exactly how the Government see this operating in practice. I recognise that that aspect of my intervention is probably new to the noble Baroness. I do not expect her to answer it today; but it would be extremely reassuring if at Third Reading she could look into the question of liaison a little more thoroughly.
	As regards the first question, there are a number of issues on which we are at the moment inclined to seek a Division of your Lordships' House. This is an important issue, but it is not of such over-riding importance that it falls into that category. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Alloway: moved Amendment No. 4:
	Clause 1, page 2, line 1, at end insert—
	"( ) quality of legal services and the standing of the profession"

Lord Campbell of Alloway: My Lords, I beg to move the amendment; I shall not take very long about it. Surely, it is common ground that it is of crucial consequence that the quality of legal services should be regarded and recorded as such in the regulatory objectives and that the standard be maintained in the interests of both the consumer and the legal profession, whose interests in this context interact and are interwoven, because it goes without saying that bad advice is very expensive and does no one a service.
	Albeit—I concede this—that in other respects, regulatory objectives may compete and conflict, such is not the case with the quality of services. That stands on its own. In any decision under the three regulatory bodies set up by statute, quality of services must be taken into account on the balance of the regulatory objectives as a matter of prime importance and of principle.
	As to the standing of the legal profession, similar but by no means identical considerations apply—albeit that £2 billion a year is the sum of the export services of our legal profession. That was spoken to at Second Reading by the noble Lords, Lord Neill of Bladen and Lord Brennan, and other noble Lords. I am informed in a letter from the Bar Council that the senior partners of leading City law firms, heads of commercial chambers at the Bar, have most serious concerns about this which they have made very clear. They have been passed to the Chancellor of the Exchequer. It is a matter of principle of generic application to the three regulatory bodies and it is also of importance—as I know the Minister accepts—that we must establish public confidence in the new regime. This is an aid to that. I beg to move.

Lord Hunt of Wirral: My Lords, I declare my interest as a partner in the national commercial law firm, Beachcroft LLP, the holder of a current practising certificate from the Law Society as a solicitor and the other entries in the register.
	I thank my noble friend for raising the very important issue of quality. Indeed, Sir David Clementi raised this factor right at the outset in his review of the legal profession when he said that the services must remain of the highest possible quality. I agree with my noble friend Lord Kingsland that Clause 1 is beginning to take shape. It is a considerable improvement on the original Clause 1, and I am very grateful to the Minister for the way in which she has accepted a number of suggestions made by the Joint Select Committee, which I had the honour to chair. However, there is still this nagging doubt about quality. We will, of course, deal with this issue when we discuss some of the later amendments, but we look to the Minister for some reassuring words about the quality of legal services and the standing of the legal profession, so I support the amendment in the name of my noble friend Lord Campbell of Alloway.

Baroness Ashton of Upholland: My Lords, we completely agree about the principle: the question is whether doing what the noble Lord, Lord Campbell of Alloway, has asked would achieve it or enhance what we believe is already in the Bill. However, let me begin with the principle. I agree completely with what the noble Lords, Lord Campbell of Alloway and Lord Hunt of Wirral, said about the standing of the legal profession and the quality of legal services. I have the good fortune, as noble Lords know, of doing work for the department on trade. Indeed, I hope to be in India next week to talk to lawyers all over India about the opportunities that we see between us for the legal professions. I have also had the benefit of receiving delegations from other countries. As noble Lords know, I sit again on the European Union's Justice and Home Affairs Council in Luxembourg on Thursday. I am therefore absolutely alive to the standing of the legal profession across Europe and the world, and I yield to no one in my recognition, support and promotion of it; so I am absolutely at one with noble Lords—the warm glow is absolutely between us. It is critical that the public, the consumer and the legal profession have a confidence in this new regime that is enhanced all the time and that we set up the new regime properly and appropriately. That has been a key part of all the amendments moved by noble Lords, who have sought at least reassurance if not changes to the legislation; so there is nothing between us on that.
	I have considered very carefully what the amendments of the noble Lord, Lord Campbell of Alloway, would do. My difficulty is that we think that our objectives already cover what they propose. We have support for the constitutional principle of the rule of law, the encouragement of an independent, strong, diverse and effective legal profession, and promoting and maintaining adherence to the professional principles, which include acting with independence and integrity and maintaining proper standards of work. Clause 4 also states:
	"The Board must assist in the maintenance and development of standards in relation to ... the regulation ... education and training of persons so authorised".
	That captures, perhaps in more detail, how we can achieve what the noble Lord, Lord Campbell of Alloway, seeks to do. I therefore hope that he feels reassured that I recognise the objective of his amendment, that I have looked carefully to see that we have achieved it, and that I completely and publicly endorse all the statements that have been made about the critical nature of the standing and quality of legal services. Indeed, I pay tribute to all those who currently deliver them.

Lord Campbell of Alloway: My Lords, I am, as always, grateful to the Minister, who speaks with an open mind. I address her with an open mind, and I shall look very carefully at what she has said. However, this is a question of principle of generic application to all three regulatory bodies set up by statute, not just to the board. The Minister may reject that point if she does not like it, but I ask her to consider it. I also ask her with respect to consider whether, from a practical point of view, this should be in Part 1, Clause 1 and not tucked away in a series of provisions that are complex and not so readily understood. This principle should apply generically and, as I see it, should be in Clause 1. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Alloway: moved Amendment No. 5:
	Clause 1, page 2, line 1, at end insert—
	"( ) In implementation of this Act the balance as between each and all regulatory objectives shall be determined by reasoned decision: notice of which shall have been given to afford objection by those to whom it would have been addressed."

Lord Campbell of Alloway: My Lords, Amendment No. 5 is not a matter of substantive law. Again, it is a procedural provision of generic application to the decisions of all three regulatory bodies set up by statute in implementation of this Act. I pay tribute to the contribution of the noble Viscount, Lord Bledisloe, who dealt with a disparity in a speech which no one sought to contradict.
	This is an overarching provision of principle. The object is to safeguard due and fair administration in accordance with the balance of the regulatory objectives. As a procedural provision, compliance with the amendment would be subject to judicial review. There is no doubt about that. This was established in the landmark decision of the Court of Appeal in the Queen and the Asylum and Immigration Tribunal. It was a complex decision, the official transcript of which exceeds 40 pages, which I have read and is available in the Library. However, the reasoning of the decision that judicial review remains in these circumstances under the aegis of the High Court is well presented in a very short and readable Times law report on 11 April.
	There are three aspects of this amendment. Put simply, the first aspect is the balance of regulatory objectives when making a decision, which I picked up from my noble friend Lord Kingsland who convinced me that that was the right approach. This is the right approach because regulatory objectives compete and conflict. The second aspect is a reasoned decision. It is absolutely essential that the decision, not just of the board but of all regulatory bodies set up by statute, should be reasoned. The third aspect is the giving of notice of a decision to afford objection, which has arisen in other aspects recently; notably, on the defence bill.
	Provision for this, which is a reflection of a rudimentary requirement of natural justice, is made only in Schedule 7 and is solely related to directions of the board under Clause 31. However, it is not treated anywhere in the Bill as a principle of general application. These are predominantly lay regulatory bodies. There is nothing unusual in that, but inevitably they will have to deal with matters of law, and this amendment would in all events narrow the scope of contention and judicial review which now retains jurisdiction over the proportionality of a decision. As a matter of general principle, this should be included in Clause 1.
	This amendment is in the interests not only of the customer, but also the legal profession in establishing confidence. It would afford due and fair administration and is wholly consistent with the soft touch of the Clementi approach. The need for it became apparent during the debate in Committee. I think I even suggested that we were in a bit of a muddle and that there might be a trigger in the statute to introduce a code of practice, which was not a good idea, but no one had any conclusive suggestions. So an amendment such as this is requisite. I doubt whether it is in the right form because I am not an expert draftsman, but nonetheless in principle I commend it to your Lordships. I beg to move.

Lord Kingsland: My Lords, my noble friend Lord Campbell has been extremely thorough in explaining his amendment so I can be very brief in supporting it. My noble friend has drawn your Lordships' attention to an important issue. Perhaps the best way to view the amendment is in the context of Clause 3, headed:
	"The Board's duty to promote the regulatory objectives etc".
	Noble Lords will see that some but not all of what my noble friend has drawn to our attention is there.
	What is important in what he has said is his reference to the reasoned decision. It should be absolutely clear to all authorised persons likely to be affected by a decision that the basis for any decision made by the LSB in promoting the regulatory objectives is clearly set out in a circulated document which, as a consequence, gives any authorised person the right, if he feels he needs it, to have that decision judicially reviewed. Under the amendment, there is an obligation for the board to produce a reasoned decision, and what is perhaps more important, an obligation for that decision to be circulated in time for an authorised person, if necessary, to take legal advice and, in the last resort, to engage in litigation.

Lord Hunt of Wirral: My Lords, I rise to support my noble friend Lord Campbell and to thank him for drawing to my attention the important decision of the Court of Appeal made on 21 February last. Having looked through the decision, I hope that the noble Baroness might also read it because my noble friend has highlighted an important point, one that has been reinforced by my noble friend Lord Kingsland. We hope that we shall be given some reassurance on how the Government intend to take this forward.

Lord Maclennan of Rogart: My Lords, I thank the noble Lord, Lord Campbell of Alloway, for his amendment. I commend what he and others have said in this short debate about the importance of giving notice to those to whom the decisions on regulatory objectives should have been addressed. That is almost a principle of natural justice and it should be spelled out clearly. I have no doubt that the Government may consider the first part of the amendment to be implicit in what has been said about weighing the different regulatory objectives, but I do not think that it is implicit that notice should be given. For that reason alone, I hope that the amendment will commend itself to the Government.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord, Lord Campbell of Alloway, for spelling out so succinctly the issues that he has raised in his amendment. I am not familiar enough with the Court of Appeal decision. I will look with interest at what he has said and I hope that I will get more information on that.
	I will try to deal with the points that the noble Lord raised, which were supported by other noble Lords. I agree completely that the board, the approved regulators and the OLC should take a reasoned approach in balancing any impact on the regulatory objectives. It is also important that these bodies operate transparently and are properly accountable. We think that the Bill already achieves what the noble Lord primarily seeks to do with this amendment. In Clause 3, which has been referred to, and Clause 27, the board and the approved regulators must have regard to,
	"the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed".
	In Clause 113, the OLC must have regard to,
	"any principles appearing to it to represent the best practice of those who administer ombudsman schemes".
	Those principles apply to all regulatory activities wherever these bodies balance those regulatory objectives.
	We believe that the principle behind what the noble Lord is seeking is well founded in the Bill. The Bill gives good grounds to those who would wish to challenge the decisions that have been made, because it is laid out extremely clearly. We have added that the board has to produce an annual report. Among other things, the report will deal with the question of how far the board has met the regulatory objectives that were set for it. The Bill also sets out a number of provisions dealing with accountability, in particular the extent to which the regulatory bodies have complied with the regulatory objectives.
	The noble Lord, Lord Maclennan of Rogart, said, echoing the words of the noble Lord, Lord Campbell of Alloway, that it is a rudimentary requirement of natural justice that the board should give reasons for its administrative decisions. I agree; it should and it must. We do not need to set that out in the Bill, but it will be important, for two reasons. First, as the noble Lord reasonably says, people have to know the basis for the decisions—the reasons why they have been made—in order, if they so wish, to challenge them. Secondly, when decisions have been made, it is important that those affected by them know exactly what they are. I agree with that. It is a principle of natural justice; it is also good practice in regulatory regimes and in the administration of organisations.

Lord Maclennan of Rogart: My Lords, I hesitate to intervene in the middle of what the Minister is saying but, on this point about notice, there seems to be a difference between getting reasons for a decision ex post facto, which may allow challenge, and notice being given to the parties, or to those to whom the regulatory ruling is being offered, prior to the handing down of the decision. Maybe there is ambiguity in the wording of the amendment, but I think that it is important that the prioritisation of the objectives should be made clear to enable any objections to be taken into account before the decision is given.

Baroness Ashton of Upholland: My Lords, the noble Lord has pre-empted me. I was going to come back with a third and final point about making sure that notice is given. The amendment does not quite work; it does not quite do what the noble Lord, Lord Campbell of Alloway, said that he intended it to do. It would mean that there would have to be notice of all decisions, at all times and in all circumstances. These are very particular concerns.
	Given the principles behind how regulatory bodies must work, it is right that they should in general give notice that they will be making the decisions and identify the issues that are being raised. As we have discussed many times, there must be dialogue—we have used the word "partnership" before—between the bodies to get the best possible decision. It is our ambition that this be done appropriately. I do not think that we need to spell it out in the Bill.
	I hope that what I have said reassures noble Lords and makes it clear that we expect the LSB and the other bodies to behave like good regulatory bodies. They should give notice of the decisions that they are about to make; they should give reasons for their decisions and publicise them as appropriate to those directly affected and those who may be affected in the future; and they should balance and consider the objectives properly. I hope that I have given enough reassurance for the noble Lord to withdraw his amendment on the basis that what I have said will carry weight.

Lord Campbell of Alloway: My Lords, I thank my noble friends Lord Kingsland and Lord Hunt, and the noble Lord, Lord Maclennan of Rogart, and I thank the noble Baroness for her response. It has become apparent that the amendment, although right in principle, may have to be redrafted. That comes as no surprise to me, and I shall need a little help. It has had three goes already, and it is very difficult to get it right—I cannot do much better. I shall withdraw it and bring it back at Third Reading.
	I would like to make a point for the noble Baroness's consideration. I am delighted to hear that she accepts the principle of everything that I said. However, I am not in agreement with her confident assertion that it is already reflected in this complex Bill or that, if it is reflected, it is done so in any manner that anybody is likely to be able to find and, if they do, understand. This is a most important matter of principle and, although the amendment may have to be redrafted, it should retain its pride of precedence in Clause 1 as a generic application throughout the Bill. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Schedule 1 [The Legal Services Board]:

Lord Evans of Temple Guiting: moved Amendment No. 6:
	Schedule 1, page 112, line 6, leave out "Secretary of State" and insert "Lord Chancellor"

Lord Evans of Temple Guiting: This large group of amendments contains necessary technical amendments to the Bill to bring other legislation into line with it, correct certain anomalies and give effect to undertakings made in Committee. The majority give effect to undertakings made by my noble friend in Committee to transfer functions relating to the Secretary of State to the Lord Chancellor.
	Amendments Nos. 28 and 330, which relate to Schedules 1 and 15, place the responsibility for laying before Parliament the audited annual accounts of the Legal Services Board and the Office for Legal Complaints on the Lord Chancellor. They bring the Legal Services Bill into line with similar legislation that has been introduced since 2000. Further, they ensure that the Government follow usual practice in the commercial sector, where companies rather than auditors file the accounts.
	Of the other amendments in this group, some, such as Amendments Nos. 47, 602 and 656,are included to ensure that the terminology throughout the Bill is consistent and to remedy minor drafting and typographical anomalies. These include, for example, replacing "trade mark attorney" with "trade mark agency", ensuring that the definition of manager in Clauses 176 and 177 is consistent with the definition in Clause 197 and correcting a minor drafting anomaly in Schedule 2.
	We have made a number of amendments to make it clear that the restrictions on providing immigration services and immigration advice currently contained in the Immigration and Asylum Act 1999 still apply. The amendments also ensure that qualified solicitors, registered foreign lawyers, legal partnerships and recognised bodies are afforded the same transitional protection as individual solicitors.
	We have also amended the Public Notaries Acts of 1801 and 1843 to bring that profession into line with the new legal framework. Amendments made here preserve the existing exemption from a requirement to be authorised to conduct notarial activities that certain ecclesiastical appointees and government officials currently rely on, ensure that entitlement to carry out a notarial activity is determined in accordance with the Bill rather than the 1801 or 1843 Acts, give transitional protection to entities that conduct notarial activities and remove the offence of practising as a notary without authorisation, which is now covered by the Bill.
	Amendments Nos. 71, 84, 91 and 658 will allow the Association of Law Costs Draftsmen to be added to the list of approved regulators in Schedule 4 to the Bill. They will also ensure that those members of the ALCD who are currently authorised to exercise rights of audience and rights to conduct litigation will be able to continue to do so under the new arrangements. They also provide that, for a transitional period, such persons will be deemed to be authorised to administer oaths. The Association of Law Costs Draftsmen became an authorised body under the current regulatory provisions—Schedule 4 to the Courts and Legal Services Act 1990—following an affirmative resolution order which came into effect on 1 January 2007. These amendments simply update the provisions of Schedules 4, 5 and 22 to that Bill to reflect that.
	These amendments bring the Bill into line with the commitment made in Committee to transfer functions from the Secretary of State to the Lord Chancellor. In addition, this group includes technical amendments to take into account the provision of immigration services and advice under the new regime, to bring the Public Notaries Acts of 1801 and 1843 in line with the Bill, to add the Association of Law Costs Draftsmen to the table of approved regulators in Schedule 4 and to make the terminology within the Bill consistent.
	One of the key aims of the new arrangements that we want to put in place is to ensure a greater degree of independence and consistency in regulation, with a single independent oversight regulator—as opposed to many—with clear objectives, setting clear standards across the sector. Each of these individual amendments plays a small but important part in that process and helps to address Sir David Clementi's concerns about an overcomplex and inconsistent system of regulation. I beg to move.

Lord Maclennan of Rogart: My Lords, the group of amendments that we are considering was foreshadowed in the debate that we had in Committee to which the Minister referred; the reasoning for the amendments was endorsed, indeed, presaged by me in that debate.
	It is important that the new regulatory system should so far as possible ensure greater independence of the legal professions from government; the substitution in the Bill of "Lord Chancellor" for "Secretary of State" was designed to bring that about. Since that debate, however, major changes have been announced in the structuring of government with regard to the role of the Lord Chancellor. It would be helpful if before this debate was concluded the Government could give some indication of how the establishment of a Ministry of Justice may have to be reflected in their thinking about the purposes that they have supported in introducing these amendments.
	The office of Minister of Justice, which will no doubt—or perhaps I should say "probably"—still attract the title of Lord Chancellor, may be held by a Member of the House of Commons. That seems highly probable. It may be held by someone who is not a lawyer and who, in this new role as Minister of Justice with its very wide responsibilities, will not necessarily carry the conventional views on how the office should be discharged. The role in the Cabinet of the new Secretary of State/Minister of Justice/Lord Chancellor may be quite different from that historically discharged by the Lord Chancellor.
	The change announced by the noble and learned Lord the Lord Chancellor was strongly supported on these Benches, but we equally strongly support the intention that the regulation of the legal professions and services should be so far as possible at arm's length from government. The independence of that system is very important if public confidence is to be retained. We shall certainly have to give further thought to the consequences of that announcement on this Bill and possibly return to the matter at a later stage.

Lord Kingsland: My Lords, I am most grateful to the Minister for his observations on amendments that he described as technical. By my calculations, there are 550 government amendments on Report, of which 230 concern, exclusively, the change between the role of the Secretary of State and that of the Lord Chancellor. I applaud the Government for making that change. Whatever the future fate of the office, there is no doubt that the responsibilities of someone who is described as Lord Chancellor under Section 1 of the Constitutional Reform Act 2005 are materially different from those of the Secretaries of State. I trust that, as a result of amendments that no doubt the Government will accept from us today, the independence of the legal profession will enormously strengthen the constitutional guarantees of the independence of the judiciary.
	The Minister described the remaining amendments as technical, and I entirely agree with him. The sadness is that, despite many of the hopes that the noble Baroness, Lady Ashton, engendered in our hearts and minds in Committee, the Report stage amendments are little more than technical, with the changes to the status of the Secretary of State and the insertion of "public interest" in Clause 1 being remarkable and welcome exceptions.
	On behalf of the Opposition, I express great disappointment. These are not party-political matters that lie between us. We all have a common interest in ensuring that legal services are provided properly, effectively and at a reasonable cost, and that the independence of the profession is preserved.
	The noble Baroness expressed broad agreement on almost all the amendments that we tabled. Yet, on Report, we find nothing of substance from the Government. I hope that during what is likely to be a long Report stage, when we try again to change the noble Baroness's mind, she will respond more positively, even if only a shade.

On Question, amendment agreed to.

Iraq

Lord Drayson: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Defence Secretary. The Statement is as follows:
	"With permission, Mr Speaker, I should like to make a Statement about operational events during the Recess. Before I start, I know that the whole House will join me in expressing my condolences to the families and friends of the nine service men and women who have lost their lives since the House last sat. "On 1 April, Kingsman Danny Wilson and, on 2 April, Rifleman Aaron Lincoln were killed by small arms fire while on patrol in Basra City. On 5 April, Second Lieutenant Joanna Yorke Dyer, Corporal Kris O'Neill, Private Eleanor Dlugosz, Kingsman Adam Smith and their interpreter were killed when their Warrior vehicle was hit by a massive bomb west of Basra City. On 13 April, Private Chris Gray was killed in Afghanistan in a firefight with the Taliban and, on Saturday night, two servicemen were killed when two UK helicopters collided north of Baghdad. An investigation is ongoing, but all the evidence so far indicates that this was an accident, not an attack. Several personnel were seriously injured during this period in these and other incidents in Iraq and Afghanistan, and they too are in our thoughts."This is a reminder of the risks faced every day by our forces on our behalf. I offer our gratitude and profound respect for those who have died and those who have been injured in the service of their country."Members will understand that there is a strict time limit on this Statement. I intend to focus on the incident which has attracted the most public and parliamentary attention during the recess; namely, the incident in which 15 of our personnel were captured and detained by the Iranians and the events that followed."I will describe, first, the incident itself; secondly, how it was handled diplomatically; and thirdly, how it was handled in media terms, including the decision to allow serving personnel to talk to the media individually and to accept payment for so doing—decisions for which, as I have already made clear, I accept responsibility. Finally, I will set out how we intend to learn the lessons for the future."I turn first to the incident itself. On 23 March, HMS 'Cornwall' was operating as part of the coalition taskforce in the northern Arabian Gulf under the authority of a UN resolution. The taskforce is responsible for a range of maritime security operations, including protecting the Iraqi oil infrastructure and undertaking boardings to disrupt weapons smuggling."At 0753, 'Cornwall' launched two boats, with a Lynx helicopter in support, with the intention to board MV 'Tarawa', a merchant vessel that had evaded a boarding the day before. En route, the Lynx flew over a different vessel, MV 'Al Hanin', and reported a suspect cargo. A decision was made to board the 'Al Hanin'. The position was well inside Iraqi waters."The boarding team boarded the vessel and, at 0846, the Royal Marine boarding officer reported the ship secure. The Lynx was tasked to return to the 'Cornwall'. By 0900, the helicopter was back on board and put at 30 minutes' notice to fly."At 0904, one of the two Royal Navy boats reported Iranian Revolutionary Guard Navy activity nearby. Very soon afterwards, one of the boats reported that the Iranians were beside them. By 0906, voice communications with the boats were lost and, shortly after, all communications were lost."At 0928, the Lynx was launched again and returned to the position of the 'Al Hanin'. Initially, it was unable to find the UK boats, but at 1005 one was spotted being escorted by Iranian vessels."That concludes what I can say today about the operational details. I am happy to answer questions, but there is not much more to say at this stage until investigations are complete. I will say two final things. First, the Royal Navy is not currently conducting boarding operations, although coalition partners are, and the Navy continues to fulfil its other tasks. Secondly, I support the decision of the Royal Marine captain to order his boarding party to lower their readied weapons. As he put it, he judged that if they had resisted,
	'there would have been a major fight, one we could not have won, with consequences that would have had major strategic impact'.
	"Let me turn now to the diplomatic handling of the incident. The Iranians detained our personnel illegally and took them first to an Iranian Revolutionary Guard naval base and from there to Tehran. We made clear both directly to the Iranians and in public statements that their detention was unacceptable and that they should be released immediately."We made intense diplomatic efforts to establish direct lines of communication with Iranian leaders to prevent the situation escalating and to resolve it quickly. It became clear that this alone would not be enough, not least because of the internal struggles within Iran as to who had control of the situation."We therefore galvanised the international community to put pressure on the Iranian regime. The Prime Minister has rightly paid tribute to those friends in the EU, in the UN and in the region who supported us and who condemned the illegal detention. I am in no doubt that this focused minds at the top of the Iranian regime. "Our personnel were released on Wednesday 4 April, after a predictable attempt by the Iranian president to turn it into a propaganda victory. But this should fool no one. Serious observers do not believe that Iran has emerged from this in a stronger position. We should remember that our main objective, the peaceful resolution of the incident and the safe return of our people, was achieved earlier than many predicted. Let me be clear: there was no apology, and no deal."Let me turn now to the media handling of this incident. On Thursday 5 April, the 15 personnel arrived in the UK and were debriefed and reunited with their families. The next day, six of the 15 held a collective press conference, organised by the MoD, which was uncontroversial. The controversy surrounds the relations between individual personnel and the media. The media had approached the families of the detainees while they were still being held in Iran. There were many offers of payment. These approaches intensified as soon as the 15 were released and it was clear that the pressure would soon be transferred from the families to the individuals themselves. They were already aware of the criticism of their behaviour while detained and some were intent on setting the record straight. "This left us with a dilemma. We had a duty of care to the individuals and their families, who were under intense pressure. On the Thursday, all those involved took the view that we should allow the individuals to talk to the media and that we should support them through that process. I believe that all those involved in this decision acted in good faith and out of a desire to protect the individuals, to protect the service and to protect operational security against the risks inherent in unofficial dialogue with the media. These were real risks, which have materialised in the past."Once the decision had been taken to allow the individuals to talk to the media, this raised a second question: how to handle the fact that the media were competing for these individuals by offering substantial sums of money. This second question was considered by the Navy over the same short period. The Navy concluded that payments were 'permissible' under Queen's Regulations, and that in this particular situation it was,
	'impractical to attempt to prevent',
	them. This was the position presented to me in a note sent from the Navy's HQ in Portsmouth to my office on Thursday afternoon, and which was put to me on Good Friday."I accept that in retrospect I should have rejected the note and over-ruled the decision. The circumstances were exceptional and the pressure on the families was intense. The Navy's decision was taken in good faith, and so was its interpretation of the regulations. But I should have foreseen that this attempt by the Navy in good faith to handle an exceptional situation would be interpreted as indicating a new departure in the way the Armed Forces deal with the media. "Over the weekend I discussed the issue further, and on Monday I asked for further advice from naval chiefs and the Chief of the Defence Staff. I decided that we must immediately review the rules and stop any further media payments to serving personnel until this review was complete. I informed the Prime Minister—which, as he has made clear, was his only involvement in this matter—and announced the decision in a statement. "Let me be clear with the House: I made a mistake. I have been completely open about that. And to the extent that what happened between Friday and Monday has caused people to question the hard-won reputation of the Armed Forces, that is something I profoundly regret; but I remind people that precisely because this reputation is hard won, it is not easily undermined. These are the facts as I know them."Let me turn to what happens now. I made clear on Monday the implications for the specific issue of serving personnel receiving payment—that this must not happen again. But clearly there are other lessons to be learned from this whole incident. "The first aspect is the operational circumstances and factors leading to the capture of the 15 personnel. This was an unusual situation with wide and far-reaching consequences; and to reflect this, I can announce that the Chief of the Defence Staff has appointed Lieutenant-General Sir Robert Fulton, Royal Marines, currently the Governor-General of Gibraltar, to lead an inquiry. As a retired former commander of UK amphibious taskforces, he will bring both expertise and objectivity to the inquiry. It will cover all operational aspects, including risk and threat assessment, strategic and operational planning, tactical decisions, rules of engagement, training, equipment and resources. I expect this to take around six weeks. Clearly it will consider operationally sensitive material and, as such, it will not be possible to publish all the conclusions, but they will be presented to the House of Commons Defence Select Committee in full. I am committed to ensuring that Parliament and the public have the full facts but, just as importantly, to ensuring that the MoD and the services learn from these events and do not let this happen again. "In a similar spirit, and on the same timeframe, I can also announce that I will be asking a small team to take over the review of the media handling which I started last week. The team will consist of a senior officer and a senior MoD official, both unconnected with these events, and will be led by an independent figure with wide media experience. The review will draw on all relevant experience—not just of this incident but of other high-profile incidents involving personnel on operations. "I want to make it clear that this review is not a witch hunt. As I have already said, I take responsibility for this particular case. Rather, the review will seek to identify lessons and make recommendations on how to manage the complex issues at play in this area: how to balance our duty to support our people, our duty of transparency, our duty to protect the reputation of the services and, most important, our duty to protect the security of our personnel in a demanding media environment. "I take responsibility for what happened over last weekend. I have acted to put it right. I have acted to make sure we learn the lessons of the whole episode in a manner that allows for full parliamentary scrutiny. But, as we go through this process, we should remember the most important point in all this, which is that we got our people back safe and on our terms".
	My Lords, that concludes the Statement.

Lord Astor of Hever: My Lords, I thank the Minister for repeating the Statement and I join him in sending our condolences to the families of those who died in the Puma helicopters and to the families of the other members of the Armed Forces killed during the Recess. Our thoughts are also with those personnel who were seriously injured. While we have been enjoying our Easter holidays, our Armed Forces have been serving on our behalf, sometimes paying the ultimate price.
	I am sure that it gave the Minister no pleasure to have to make this humiliating Statement any more than it has given any of us pleasure to hear it. I say nothing at this stage about the victims of these events—the 15 British sailors and marines who were seized, detained and exhibited by the Iranians. Some people may be willing to regard the whole thing as a chapter of accidents, but that, I fear, is not the truth of the matter. The truth is that they were seized, clearly unlawfully, while engaged on operations for which they were inadequately equipped, inadequately briefed and inadequately supported.
	The inadequacies have not arisen from this operation; they have been long-standing, as noble and gallant Lords and many other noble Lords from all sides of this House have warned time and time again. The inadequacies are thus the direct fault of Her Majesty's Government and of the Prime Minister and the Chancellor of the Exchequer in particular, together with their successive Secretaries of State for Defence, due to their persistent determination to take unfair advantage of the can-do attitude of our Armed Forces and to task those forces spread over-thinly on the ground, on the water and in the air—in short, to do as much as possible with as little as possible.
	So we welcome the announcement of the setting up of an inquiry. My right honourable friend David Cameron made it clear that the Opposition, speaking for the country as a whole, require there to be a prompt and full inquiry, examining and reporting on the fundamental causes as well as the incidental events. Those who are fortunate to know Sir Rob Fulton will immediately agree that he is exactly the right person to undertake this task. We hear what was said in the Statement about not publishing the full conclusions of the Fulton report and about disclosing the whole to the Defence Committee in the other place. I believe that I will have the support of all sides of the House when I say that it is essential that the report's findings should be disclosed equally fully to a representative body of noble Lords. I must therefore ask the Minister whether he will take steps to consult the usual channels as soon as possible on how such a body can best be established.
	In the mean time, there are some outstanding questions to which the public are entitled to an immediate answer. Is it usual for mother ships to stand off at large distances—10 nautical miles in this case—from ongoing boarding operations? It is well known that because of atmospheric conditions in the area, radio communications often fail, as appears to have happened in this case. Why, if it is standard practice and necessary to maintain continuous air cover during such operations, did the Lynx return to HMS "Cornwall" and why was it then at only 30 minutes notice to fly? Is it a correct decision that all our naval boarding operations should now be halted while, as we are told in the Statement, they are continued by our allies, or is this another example of a hasty and unconsidered decision by the Secretary of State?
	Will the Fulton report also cover the number of personnel who should be involved in boarding operations, their armaments and additional support that should always be on hand? Why was the incursion by the Iranians not picked up by HMS "Cornwall"? It is only three years since other members of our Armed Forces were illegally seized by the Iranians. What procedures were put in place after discussions with the Iranians after that seizure? Are they still valid?
	The main role of HMS "Cornwall" has been to protect the Iraqi oil infrastructure. Who will be responsible for that when HMS "Cornwall" is paid off? Is the Minister satisfied that naval personnel receive adequate conduct-after-capture training to cope with likely increased efforts to take them hostage?
	While welcoming the setting up of a review of media handling, why were proper plans not in place for the return of the captives, particularly in light of the PCC's warning to the MoD of the possible media circus and its offer of help.
	Finally, is it not a disturbing reflection on the operation of the offices of the Secretary of State and those of the Prime Minister that the Prime Minister did not learn of this major international crisis until he heard them through the media on Sunday? Despite the almost inconceivable incompetence of the media handling in this matter, and—as the Statement admits—other high-profile incidents, we must not lose sight of the fundamental point, which is the catalogue of problems that led to the capture of our personnel. Are the Government confident that they are taking action that will ensure that this does not simply become another high-profile incident in a future Statement?

Lord Garden: My Lords, I start by expressing from these Benches our relief over the safe return of the 15 sailors and Royal Marines who were taken captive. That feeling is of course tempered by our sadness over the nine personnel who have been killed in operations since we last met, and our sympathy goes out to the families who have suffered losses and to those further personnel who have been injured.
	I thank the Minister for relaying the Statement, which spends just one page out of the six on operational matters. But I do not intend to focus my questions on media handling and who made the decision that cheque-book journalism was the new way for the Ministry of Defence. I say simply that, along with both serving and former military colleagues to whom I have spoken in the past week, we were all astonished by the naivety of those who appear to have been involved in the decision and surprised that the Defence Secretary failed to use his political nous when needed. However, in the end, he made the right decision. The Westminster and Wapping frenzy over who knew what about payment for stories must not obscure the much more serious question of how such a catastrophe occurred in the first place, and what has happened to the reputation of our Armed Forces as a result.
	When the noble Lord, Lord Triesman, made a Statement on 28 March, I deferred asking any questions about the circumstances. In a time of delicate diplomacy, the last thing needed was a row about how we got into this mess. However, now that the sailors and marines have all returned safely, we need a full examination of how Britain found itself outwitted by the Iranians. In the Statement, the Minister has announced the inquiry to be headed by Sir Rob Fulton, who I know well. I join others in saying that he is an excellent choice; I have the highest regard for him.
	The Royal Navy is well practised in boarding and searching operations in many parts of the world. However, there are few areas as sensitive as the Shatt al-Arab waterway border between Iran and Iraq. It seems clear that the UK was operating within Iraqi waters and that the Iranian action was illegal. However, can the Minister explain today—not at the end of the inquiry—why the taskforce failed to foresee the risk? As the noble Lord, Lord Astor of Hever, has said, in June 2004, six British marines and two sailors were seized by Iran in nearby waters. Although they were released unharmed after three days, their boats have never been returned, so even a casual observer knows that it is a possibility. What intelligence assessments has the Minister sat and listened to at the MoD which would have said this? Are there not procedures to take into account another threat in that area: potential terrorists in boats attacking our navy? Was there nothing to stop that, and would it not have stopped the Iranians? We could have those answers today, rather than waiting for the end of the inquiry.
	So far, what we know about the tactical position seems to suggest complacency was the order of the day. While the lead ship, HMS "Cornwall", may have been unsuitable for close in-shore operations, this was a multi-national taskforce. What were the other nations doing? Where were the support vessels, the helicopters and fixed-wing air reconnaissance to give the information?
	The sense that the problems were not anticipated is compounded by the apparent lack of training in conduct after capture for the hapless hostages. In the past, that was normal procedure. Has that stopped? Can the Minister tell us whether all personnel in the area get conduct-after-capture training? Again, the Royal Navy and the Royal Marines have seen themselves end up on Iranian television. As a result of their admissions of guilt, the reputation of the United Kingdom has sunk further in that part of the world.
	A major military blunder was salvaged by diplomacy, and then ruined by a bizarre public relations exercise organised by the Royal Navy and initially allowed by the Defence Secretary. It looks as though the Ministry of Defence is joining the Home Office as "not fit for purpose". The Statement offers a separate review about future press relations, in which there is to be an independent component. Will there be an independent figure in the Fulton review? Perhaps there will be a distinguished defence academic such as Sir Lawrence Freedman, who wrote the Falklands official history; somebody who can look from outside of the closet of the Ministry of Defence.
	Will the Minister assure us that he will provide the House with a copy of the terms of reference for the Fulton inquiry, so that we know what it is going to look at? I support the call of the noble Lord, Lord Astor of Hever, for a parallel to the House of Commons Defence Select Committee having access to the final, full report for your Lordships' House.
	Will the Minister tell us the current situation in that region for maritime border security operations? I understood that we were in the lead; if we are not doing it, who is in the lead? Who is doing it? Are the Iraqi Government content that we have now withdrawn? How long are we withdrawn for? Until the inquiry is over? For ever? What are we doing with our forces out there? Finally, will the Minister assure the House that the lessons from this shambles will be learnt by the Ministry of Defence, the Permanent Joint Headquarters and the Royal Navy, and that they will not take the Prime Minister's advice that it is time to move on?

Lord Drayson: My Lords, I am genuinely grateful for the tone taken by noble Lords opposite in expressing their relief at the release of 15 Royal Marines and sailors. However, I completely disagree with some aspects of what the noble Lords said.
	Given how this House generally reviews defence matters, and the cross-party support which our Armed Forces enjoy, I am sure that Members of this House appreciate the non-partisan way in which these important matters are addressed. I say that because the history of our Armed Forces is that we learn the lessons when things go wrong. Clearly, things have gone wrong in this case. My right honourable friend has implemented these two open inquiries not only into the very important operational questions to which we need to have answers but also into the media issues which have had such prominence of late. That reflects the style of my right honourable friend. In the time I have worked for him, I have seen his real commitment to the welfare of our Armed Forces and how he goes about making sure that things get done within the Ministry of Defence. Therefore, I cannot accept any statements which say that the Ministry of Defence is not fit for purpose. That is not the Ministry of Defence of my experience.
	I do not believe that this is a humiliating Statement. When a Minister has recognised that a mistake has been made, it is right openly to say so, to put that situation right and then to implement the necessary reviews to make sure that such a thing never happens again. I believe that the media frenzy is a media storm in a teacup. It has completely overpowered the central issue, which, as set out in the Statement—which I am grateful to noble Lords opposite for mentioning—is that we got our people back. Our greatest concern was to make sure that they were well and fit, and to get them back to their families. As we saw during that process, my right honourable friends the Secretary of State, the Foreign Secretary and the Prime Minister worked extremely hard and—I think the evidence shows—extremely effectively to return these people. A number of statements were made by them during this process. So it is not correct to say, as the noble Lord said, that there is a surprising lack of involvement by the Prime Minister during this process. He was plainly fully involved in the process of the release of our people.
	I do not believe and I hope—and we shall see by the tone of the House—that this House will not make the same mistake that some people have by focusing so much on these media issues to allow them to overshadow the very important operational aspects which need to be focused on.
	I have been asked a number of questions. I shall ensure that all questions asked by noble Lords opposite and any points raised by noble Lords this afternoon are passed on to the inquiry. I note the points of confidence made with regard to Lieutenant General Sir Robert Fulton. I will make sure that he addresses those questions.
	There are some issues to which I can attempt to give a direct answer today. As regards foreseeing the risks, we recognise absolutely the risks inherent in carrying out these operations, as we do many of the operations which we ask our Armed Forces to carry out every day. We had operating procedures for carrying them out. Boardings by the Royal Navy, as noble Lords have said, are something which the Navy undertakes virtually every day of the week. We have to ask ourselves whether those operating procedures were adequate. In the terms of the inquiry, we will make sure that we do so. We will need to make sure that any improvements that we can make from the lessons we have learnt are implemented. We have set out the timescale for the outcome of this inquiry. I am sure that the usual channels will make sure that this House, like the other House, has a full opportunity to review the outcome of the inquiry.
	The noble Lord, Lord Garden, asked whether all members of the Royal Navy receive training to deal with hostage-taking situations. They do not. But we have implemented action to ensure that all personnel in an operational theatre from now on will receive such training.
	I will take back to the Ministry of Defence the point on the terms of reference for the Fulton inquiry. But, I can absolutely assure this House that a full inquiry will be undertaken into the events by which our personnel were captured. That will be shared with the House in the way I have described.

Lord Craig of Radley: My Lords, in reply to the shadow Defence Secretary in the other place, Mr Browne implied that he had the support of the Chiefs of Staff. I think that that is a sensible and pragmatic view for the chiefs to take. This is not the time to be changing a Secretary of State. Extremely serious strategic issues face this country. Both CDS and CGS have commented in public about the serious overcommitment faced by our forces on two operational fronts. The situation must be strongly represented in Cabinet and the incumbent must be familiar with what is going on. A new Secretary of State would take time to get up to speed. With a change of Prime Minister, there is a possibility that a further Cabinet shuffle could take place very soon.
	For those reasons, it would be wrong for the Secretary of State to resign or to be fired. I take it that he has the full support of his ministerial colleagues and I hope that that view will be represented to the Secretary of State.

Lord Drayson: My Lords, I am grateful to the noble and gallant Lord for the points that he makes. The Secretary of State absolutely has the full confidence of the defence chiefs and his ministerial colleagues.

Earl Attlee: My Lords, is the Minister telling the House that the Royal Navy has been deterred from undertaking boarding operations by a handful of motor boats of the Iranian Revolutionary Guard?

Lord Drayson: No, my Lords, I am not telling the House that. The situation at present is that the Secretary of State is awaiting a submission from PJHQ on the precise details of when, how, and under what circumstances boarding operations should be recommenced.

Lord Robertson of Port Ellen: My Lords, I add my voice to that of my noble friend and of the whole House in his sympathy and condolence for those who have died in the past few weeks, their families, their friends—and those who have died in Iraq and Afghanistan during the past three years. In the light of their sacrifice and their families' agonies, is there not a danger of us scalding ourselves in cold water by focusing obsessively on the press coverage of some of the experiences of those involved?
	None of us who have served as Secretary of State for Defence—six Members of this House have held that position—can have not wanted to have the perfect wisdom of hindsight when we took decisions, especially in relation to the press coverage of the vast department for which we had stewardship and responsibility.
	Decisions have been taken in the past that were benign at the time but dramatic in their consequences. There was the decision to allow Mr John Nichol, the captured pilot in the first Gulf War, to talk to the media; the decision taken to allow General Sir Peter de Billière to publish his memoirs, especially about his time in the Special Forces; and the decision, regretted as it was, when Michael Portillo mentioned the Special Air Service at the Conservative Party conference. All of those were done in a benign context but had repercussions and I think that everyone connected with them might have wished for the wisdom of hindsight. Such things happen in the circumstances and it is right, appropriate and in the spirit of the man that Des Browne has come to make such a significant apology for his misjudgment—his temporary misjudgment—in the situation.
	I very much welcome my noble friend's announcement that General Sir Robert Fulton will head the inquiry, because there are serious issues to be examined here and the Government are as interested in the answers as anyone else. Sir Robert Fulton, who served as Captain-General of the Royal Marines while I was Defence Secretary, is ideally suited to giving judgments on that, too. Throughout all this, we really must underscore the fact that our hostages got out safely and without price. That is of huge significance, which we should in no way underestimate.
	The noble and gallant Lord, Lord Craig, has made the point that the Chiefs of Staff today have made a statement about their confidence in Des Browne as the Secretary of State for Defence. That is an important and relevant thing for them to have done, which they will have done in good faith. This is no time for changing the political leadership at the top. It would be a grave disservice to those who continue to serve our country in areas of danger if that were to be the outcome.

Lord Drayson: My Lords, I agree with everything that my noble friend has said, and with the perspective into which he puts these matters. It is important for the House to keep media issues in perspective. It is important for us to focus on what is really important.

Lord Hurd of Westwell: My Lords, in the Statement, which the Minister repeated, the Secretary of State in the other place used the phrase "in good faith" several times, as, I think, did the Minister. That is not in question: most political blunders are made in good faith. They must, however, be recognised. The Secretary of State has recognised them in his Statement, as has the Minister today, but it is a mistake to deal with this aspect simply as if it were a "storm in a teacup", to use his phrase. As the reports and the reactions from all over the world come in, we can see what harm this episode, and particularly the media aspect of it, has done and is doing to the profound respect which the Secretary of State mentioned that he felt for the Armed Forces and which we all feel. It is part of the job of the political leadership of the Armed Forces to avoid mistakes that lead to the undermining of that respect. Most of us who have had political responsibility felt, the moment we heard of this dilemma, that it was a political mistake. It is not a question of hindsight; it was clear to most people at the time that this was a bad error.
	Another point is the training for captivity; when servicemen have fallen into the hands of a foreign power. I understand that it has been said that some of the 15 had such training and that others did not. Is that the position? What is the nature of that training? This is a question of fact now, not a question for a future inquiry. What questions are servicemen in that position expected to answer? What questions are they expected not to answer? And to what extent is it accepted as normal practice that they might, in certain circumstances, put their names to statements which they know or believe to be untrue? This is only part of the problem. We need a little more light on this aspect, quite independently from any decisions taken on future policy.

Lord Drayson: My Lords, on the noble Lord's first point, we need to recognise that there was always going to be huge media attention on this issue. I do not underplay the importance of media issues, but this is a question of how, in the current modern media world, the Ministry of Defence can best act in these very difficult circumstances, in which there are clearly lessons to be learnt.
	The noble Lord also asked about training. My understanding is that certain members of the crew had been trained in those aspects, but certain members had not. It would not be appropriate, right or helpful for me to go into the details of what type of questions and questioning our people are expected to cope with. We do, however, recognise that this is an area in which we have to make improvements and make a change, and we have done that, so we have already taken the action that I have described in the House this afternoon; henceforth, all members of our Armed Forces who are in such operational theatres will receive such pre-deployment training.

Lord Anderson of Swansea: My Lords, we are confident that our sailors were captured in Iraqi waters. The Iranians justified their action by saying that the sailors were in Iranian waters. Surely, that fact could be ascertained by experts looking at all the relevant evidence. Does my noble friend believe that all action at the United Nations by us has now been abandoned, particularly because our sailors were acting under a UN mandate, or that there may be some mileage in asking the Security Council to set up a small panel of experts to look at all the available evidence? The conclusions of that panel of experts may allow us to regain some of the ground we have lost over that sorry incident.

Lord Drayson: My Lords, if I have understood my noble friend correctly, I do not believe that he is right. I do not believe that we have lost ground internationally with regard to whether we were in the right or the wrong relating to the location of our personnel. We have been able to establish very clearly the location of our personnel. They were 1.7 miles within Iraqi waters and we have been able to show that evidence. That we were able to pursue these points with the international community when it was clear that quiet diplomacy would not be effective and were able to secure the release of our people in the timescale we did shows that this process had an effect.

Lord Mackie of Benshie: My Lords, as regards previous questions on the action of our forces in captivity, I hope that we will not let the Iranians get away with what they did. It has been disclosed that they used threats and they cannot be allowed to get away with that. What do the Government propose to do about that?

Lord Drayson: My Lords, our policy remains the same. We will pursue diplomatic relations on a multilateral basis with the international community to put pressure on Iran. We will continue to keep this pressure up and believe that recent events show the effect of this multilateral effort.

Lord Morris of Aberavon: My Lords, I welcome the fact that the Secretary of State has accepted that it was his mistake and has said he is sorry, for which he should be commended. I also welcome the fact that he has set up two wide-ranging inquiries on the two pertinent issues. In a fast-moving situation, what ministerial cover was there in the Ministry of Defence on that Thursday afternoon and Good Friday morning? Who made the decision that the submission should go to the Secretary of State only "to note" and through which Ministers or senior civil servants did that submission go?

Lord Drayson: My Lords, I am grateful for the points that my noble and learned friend has made in support of my right honourable friend. All Defence Ministers, as Members of this House who were formerly Ministers in the Ministry of Defence will know, are available at all times to be contacted on defence matters. In the modern world of communications and so forth, it is not necessary to be physically in the Ministry of Defence to be available as a Defence Minister.
	As regards the chain of command and the way in which this decision was taken, I have nothing to add to what I said in repeating the Statement. It is important that this does not turn into a witch-hunt as to who said what to whom relating to the submission to the Secretary of State. That is not appropriate or the purpose of the review.

Lord Tebbit: My Lords, first, on the media shambles, the Minister said that it will not be allowed to happen again. But if it can be prevented from happening again, why was it not prevented from happening on this occasion? Secondly, he said that we are very good at learning the lessons from these things. But British boats have been captured before in similar circumstances. Why did we not learn any lessons from that experience? Why did we have to leave it to make the same errors again?
	Finally, the Minister has evaded to a considerable extent questions about why these personnel were not properly trained in the techniques of resisting interrogation. As a young officer in 1949, I was trained in such techniques, and the training was a bit rough at times. However, it is now clearly inadequate.

Lord Drayson: My Lords, I am afraid that I disagree with the noble Lord. The incident that took place in 2004 on the Shatt al-Arab waterway was quite different from this case. It occurred within the waterway and the circumstances were completely different. A review of the events in 2004 relating to the taking of boats was undertaken by the Ministry of Defence and its conclusions were implemented. We have to make sure that the conclusions reached by the review into this incident are similarly implemented. However, these operations were different in nature and cannot be compared with each other. The noble Lord shakes his head, but we shall have to disagree on that point. There is quite a difference between patrolling a waterway as in the operation in 2004 and carrying out lawful boarding operations to combat smuggling under a UN mandate in Iraqi territorial waters.
	The noble Lord has much more experience than I on the history of training to resist interrogation and I bow to his knowledge. The point is well made. We have taken it on board and we have made changes. But until now it was not regarded as necessary.

Lord Corbett of Castle Vale: My Lords, is not one of the main lessons of this premeditated seizure of our personnel by the Iranians that firmness towards this rotten regime succeeds while floundering and appeasement fails to encourage the fundamentalists to come clean about their nuclear ambitions? Will the Government now match the firmness they demonstrated on this occasion by removing the ban on the Iranian resistance to signal our support for those who have had their freedom and human rights stolen from them?

Lord Drayson: My Lords, I agree with my noble friend that in this case firmness has succeeded, and I will consider his point relating to the wider application of such firmness.

Lord Inge: My Lords, first, I share with other noble Lords our thanks that the marines have been returned safe and sound, but some hard lessons have to be learnt from this which have been mentioned by a number of speakers. My anger is directed at two areas. The first is training and preparation, issues touched on by the noble Lord, Lord Tebbit. On military operations you plan for the worst case, but as far as I can see there was smugness, a lack of training and a lack of grip in the preparation of those sailors for the role they were undertaking. I find that quite amazing, given that they were next door to Iraq where we are deeply involved in operations. Secondly, my anger is directed at officials, both non-uniformed and military, in the advice they gave the Secretary of State. It is extraordinary that that advice was given. I have always had a great belief in the importance not only of the military but also of the Civil Service in these issues. The fact is that they gave what I thought was third-rate advice, and I cannot believe that some of the great permanent under-secretaries I have known in the Ministry of Defence would have allowed it to happen. It is a big issue.
	I want the Secretary of State to remain in office, as I know do the Chiefs of Staff. My trade test for the Secretary of State would not be this, but to make sure that the services are funded in the way they need to be. If they are not, that is when he should resign.

Lord Drayson: My Lords, I take on board the comments of the noble and gallant Lord, given his experience. Equally, we have taken on board the points relating to training and preparation made by him and the noble Lord, Lord Tebbit. As I have said, action has been taken in this regard. However, I do not believe that we should criticise the 15 individuals who had to withstand a frankly awful experience and did so in a way that I really do believe is to their great credit.
	With regard to the point that the noble and gallant Lord made about advice within the Ministry of Defence, we recognise, as my right honourable friend has said and as was described in the Statement, that a mistake was made, and we have moved to put that right. We need to learn the lessons from this experience to ensure that it does not happen again.

Lord Inge: My Lords, the Minister misunderstood me. I was not pointing my finger at the 15 sailors and marines, but at those who prepared them for those operations.

Lord Drayson: My Lords, I note the noble and gallant Lord's point.

Legal Services Bill [HL]

Consideration of amendments on Report resumed on Schedule 1.

Lord Neill of Bladen: moved Amendment No. 7:
	Schedule 1 , page 112, line 6, at end insert "with the concurrence of the Lord Chief Justice"

Lord Neill of Bladen: My Lords, I am not tongue-tied—I thought it better to allow a short period for Members of the House to withdraw. In moving the amendment, I make the normal declarations of interest I have made on previous occasions. I am a practising member of the Bar, in my time I served on the Bar Council and I was chairman of the Bar. I also served on the Joint Committee that looked at the Bill, and I owe it to that period of service that I have at any rate some sort of working knowledge of some of the main provisions of the Bill.
	My amendment raises a key issue about the mode of appointment of the leading figures who will be operating under the Legal Services Act. We are talking today about probably the most important of the offices: the chairman of the Legal Services Board.
	I want to link back. It is fortuitous that the noble Lord, Lord Kingsland, should have mentioned that there are certain aspects of what we are debating that to my mind have no flavour at all of party politics. The issue we are talking about now is how the chairman of the Legal Services Board should be appointed, and whether it is sufficient that his appointment should be in the hands solely now of the Lord Chancellor. It would have been the Secretary of State, but now, as I read the amendments, it will be the Lord Chancellor who makes the appointment. As we know, however, the role of the Lord Chancellor has been transformed. The august office whose former holder is present today is now scarcely recognisable under the title of Lord Chancellor. These issues have nothing to do with party politics, but everything to do with trying to move forward on this new legal services territory—which, it is quite honest to admit, is experimental—and doing so on the basis of consensus so that you carry people with you. It is therefore important not to ignore perfectly valid points.
	The basic submission I will be making with this amendment is that it is valid to argue that the top player on the scene—that is, the chairman of the Legal Services Board; I put him top—should get there by being appointed by the Lord Chancellor but with the concurrence of the senior judge, the Lord Chief Justice. Why is that important? It is really too obvious to state: because the legal profession must be brought on board and go along with what is happening.
	One thing came out clearly in the evidence to the Joint Committee, and we referred to it in our report. The impression had been created by various provisions in the Bill—I will mention two in a moment—that in some way the legal profession of this country would lose its independence and be manipulated by party politics and by government. One ground for that perception was itemised in detail by the noble Lord, Lord Hunt of Wirral. On two occasions he drew attention to the number of places in the Bill where there is a reference to the Secretary of State—perhaps it is now the Lord Chancellor—being in a position to order this, that or the other thing to happen, or to give directions. There are numerous examples. The other place where it was picked up was the territory we are now in—that is, who appoints the key players? Is it simply done by the Lord Chancellor or should it be done with the full support of the legal profession, evidenced by the judgment and verdict of the Lord Chief Justice, as there can be no more suitable officer to do that?
	Wading through the Bill to look at the provisions we are repealing shows many examples of appointments and like matters being done by a Minister but with the concurrence of the Lord Chief Justice. Sometimes more than one judge is mentioned; sometimes two or three office-holders are mentioned. The concept of acting with the concurrence of a high legal officer of the judiciary is very familiar.
	I am happy to see that the amendment has the backing of others. To repeat a point that I touched on at Second Reading but certainly made in Committee, if the Government accept the amendment, it would be a major step in harmonising or bringing on board the good feeling of members of the legal profession who, in some quarters, feel isolated. How can one resist the proposal that the Lord Chief Justice should concur in such an important appointment?
	The noble and learned Lord the Lord Chancellor said—I am sure that these are not words he is very proud of—something along the lines that consumers tend to think of the Lord Chief Justice as just another lawyer. Even if there were any empirical evidence to establish that, which I very much doubt, consumers come in all shapes and sizes—some will know perfectly well who the Lord Chief Justice is. They will know his reputation and if they do not know the man, they will know the office. The office of Lord Chief Justice has been there for centuries as one of the branches of the courts. There were two or three at one time but for the past 100 or 150 years, there has been one Lord Chief Justice. It is no answer to the argument to say that people regard the Lord Chief Justice as another lawyer. That is saying that to associate a lawyer with the appointment somehow contaminates it. What is the validity of saying that people will look on him as just another lawyer? So that is not an answer.
	With the greatest respect to the noble Baroness, Lady Ashton, I think it is fair to say that although she displayed her usual courtesy and charm earlier, we got no further than her indicating that this was not on the agenda or the menu so she was not in a position to give any of the body language that we have had on other occasions with regard to this amendment.
	On the terminology of the amendment, the Joint Committee's report contained language such as "after consultation with the Lord Chief Justice". On reflection, I am a party to that report, so I could be said to be departing from what we recommended. However, in the light of my experience in public law, where sometimes a perfunctory consultation has been held to amount to consultation, I came to think that it would be much better to use the old language that I found in the old precedents and talk about "the concurrence" of the Lord Chief Justice. You could also refer to "the approval" of the Lord Chief Justice. An amendment on removal to be debated later refers to approval.
	Incidentally, it is obvious that the point that I am now making about the appointment of the high officers who will run the service will hold equally good for their removal. Amendments later today deal with that. I think that I have said enough to indicate why this is a desirable amendment and why the House ought to adopt it. I beg to move.

Baroness Carnegy of Lour: My Lords, perhaps an innocent bystander—a member of the public and consumer—might join in at this point. I see that the noble Lord, Lord Whitty, as chairman of the National Consumer Council, is here as a top consumer, sitting and listening to this debate. I rather thought that he was disagreeing with the noble Lord who moved the amendment. From listening to what people say about these things, I think that the public would trust a judge or lawyer far more than a Minister, politician or political Peer, which I suppose I am. The noble Lord's point is a good one. It would give the public confidence. They would not think, "This is just another lawyer". They do not think that judges are like that. When reading reports of cases and what judges have decided, the public very seldom criticise what the judge has done. They may criticise the lawyers, but not the judge.
	The noble Lord has a good point and I rather hope that the head of all consumers—the noble Lord, Lord Whitty—will answer me on that point, because I do not think that what the public thinks is against this amendment.

Lord Borrie: My Lords, I should like to question the purposes of the amendment moved by the noble Lord, Lord Neill of Bladen. I agree that just because the Lord Chief Justice is a lawyer is no valid reason for not wanting his concurrence in the appointment of a person such as the chairman of the Legal Services Board—not at all. I raise more of a constitutional issue related to some of the constitutional changes to which the noble Lord, Lord Neill of Bladen, referred; namely, the change in the past couple of years whereby the Lord Chancellor no longer straddles the legislative, executive and judicial roles of government. That was an anomaly, but he did so to the delight of law students over the decades if not centuries. As a former teacher of law, I am one of those who regrets that that anomaly has disappeared.
	One of the consequences of the disappearance is that the head of the judiciary is now the Lord Chief Justice. He or she is exclusively in the judicial arm of government and not involved with the Executive. In a short while, when the Supreme Court is set up, he or she will not be part of the legislature. I am one of those who regrets that he or she will not be part of this House because I remember Lord Chief Justices in the recent past, such as the late Lord Taylor, intervening in criminal justice Bills and so forth—intervening rarely but gently and persuasively on many matters. I regret that, but that has been the change. My constitutional point is simply that it is no longer appropriate in the present constitution, when the Lord Chief Justice is purely head of the judiciary and not part of the Executive or the legislature, that he should have and be given by a Bill such as this a role in appointments—albeit a concurrent role but none the less intended by the noble Lord, Lord Neill of Bladen, in his amendment to be an important role, not a minor one. I question the appropriateness of it in light of the changes recently made.

Lord Wedderburn of Charlton: My Lords, is the noble Lord aware of the fact that the Lord Chief Justice has many administrative tasks in running the whole system of the courts and as the head of the judiciary has plainly enormous space for confidence from the profession? Since the Lord Chancellor in future may not be a lawyer but a junior Minister who knows relatively little about the whole process, what is the objection to extending the administrative tasks of the Lord Chief Justice so that he is consulted in this matter? We do not have a written constitution that makes it forbidden; to say that it is unconstitutional is to make up some new rule. Surely the noble Lord would not want the whole process to be downgraded by not having the Lord Chief Justice consulted.

Lord Borrie: My Lords, I am not sure whether my noble friend, or former noble friend, is asking me a question or making his own speech. My own view is that, certainly, the Lord Chief Justice has many administrative duties in running the courts, but that is not a case for giving him the appointment role or concurrence in appointment role of the chairmanship of the Legal Services Board. My former noble friend Lord Wedderburn has not answered my main constitutional point.

Lord Carlile of Berriew: My Lords, I start by making a declaration of interest, as I am a practising member of the Bar and head of a set of barristers' chambers with more than 80 barristers in it. We on these Benches support the amendment moved by the noble Lord, Lord Neill of Bladen. He moved it with great clarity and I shall try to restrict my remarks to a relative minimum.
	As the noble Lord said, the appointment of the chairman of the board is not merely an important appointment but the appointment of a person who will have great influence over standards exercised by advocates and in the courts. One needs only to look at the professional principles set out in Clause 1 to see the very great jurisdiction that the chairman of the board will have as he directs his board.
	The clear message of the amendment is that those at the Bar, solicitors, possibly the judiciary—for whom I do not dare to speak—and certainly a large swathe of the public wish to be assured that the legal system in this country will remain independent of the Executive. I do not want to be seen as grudging or ungrateful for Amendment No. 6, which was conceded by the noble Baroness, Lady Ashton, but that amendment is meaningless in the current environment. I think that the concession was made before the announcement that there would be a Ministry of Justice, or certainly the Minister did not seem to know that there was going to be an announcement of such a ministry—and I see that she is assenting to that proposition. The effect of the amendment is actually nil when it comes to an assessment of the independence of the legal system.
	We now know that the Lord Chancellor is likely to be an elected Member of the other place, a party appointee, an instrument of government and quite possibly from time to time someone with no knowledge whatever in any depth of the legal system. Any theory of the independence of the office of the Lord Chancellor, to which the noble Lord, Lord Borrie, alluded, is now gone for ever. The Lord Chancellor no longer sits astride the constitution in part as a Cabinet Minister and in part as an entirely independent person—the sort of role that was carried out so ably by the noble and learned Lord, Lord Mackay of Clashfern, who I am pleased to see in his place this afternoon. How do we assure the profession, the public and the judges of that crucial independence of the legal system without something like this amendment, which seems to me to provide a simple answer?
	As we started this debate, I was reminded of my noble friend Lord Hooson, who in one of his most celebrated cases during an illustrious and distinguished career at the Bar, defended Ian Brady on charges of murder. A role of advocates is sometimes to do what is deeply unpopular with the public at large and to show a quintessential independence which is not motivated by being reasonably rewarded for the case, but rather by a tradition that somebody has to appear in that unpopular cause. If instructed, we do it because we have the confidence that, provided we act within professional ethics, we will be regarded at all times as independent.
	Every young barrister who has made his or her first appearance in the Lord Chief Justice's court in the Court of Appeal Criminal Division learns very quickly what that means—that if you step outside the line of proper preparation and presentation, and if you say too much or too little, you will be given a clear lesson by the Lord Chief Justices and their Lordships before whom you appear. There are one or two here before whom I have appeared, but in the fairly distant past, I am bound to confess.
	The recent Sullivan case is a very good example of my next point. If a member of the Bar or other advocate goes to the Court of Appeal and criticises a member of the judiciary for discourtesy, bias or laziness—as happens from time to time—they know that, as long as they act within the professional standards set out in Clause 1, the Court of Appeal and the senior judiciary as a whole will uphold their right to represent the interests in the case independently.
	From time to time barristers have to appear on behalf of Secretaries of State to defend indefensible decisions by Ministers. We should consider the huge number of cases that successive Home Secretaries have lost in the Administrative Court. I am not making a party-political point, because they are all as good or as bad as each other in this context. What we have is a profession that understands that if it behaves properly its independence will be protected. But who protects its independence? It is certainly not Ministers. If we ask independent advocates how much they feel that their independence is protected by Ministers, they will laugh because they know that that is not where their protection comes from. If we ask them whether their independence is protected by chairmen of non-governmental organisations, committees, the Bar Standards Board or any other independently appointed committee, they will guffaw because they know that is often far distant from what they do every day. The answer they will give in the end, when you press them, is, "We are protected by the judges. We may not like some of the judges before whom we appear. They may treat us roughly or they may treat us kindly, but at the end of the day they are the guarantors of our protection as advocates". But we are not just talking about the advocates. When judges protect advocates, whom are they really protecting? They are protecting our lay clients—citizens who often constitute extremely unpopular causes, such as the examples I have given.
	To provide that assurance to the public, the amendment takes a small but important step. Our constitution is not written. The noble Lord, Lord Borrie, spoke, if I may say so, with respect, as though it was immutable. What the noble Lord, Lord Neill of Bladen, I and others seek to do today is to put into our mobile, changing constitution an important and surely rather uncontroversial piece of independence. Indeed, I suspect that the Minister agrees with the principle of everything that I have said so far. I suspect she is really concerned about the mechanics. If that is right, I urge her to put aside the mechanics and to recognise that absolutely no harm, and certainly a lot of perceptual good, could be done by this change.
	The guarantee of independence is part of the golden thread, as it has been called by others, of the British legal system. In this amendment, the noble Lord seeks to provide a little more strength to that golden thread.

Lord Slynn of Hadley: My Lords, there has been a tendency in recent years to say that judges must only judge and that they should do nothing outside the judicial function. We have heard that particularly from politicians and even from Ministers. We heard it when the Human Rights Act was proposed: "We must not have the Human Rights Act as part of British law because it will involve the judges in political decisions. Do not let the judges make statements about matters of public interest; they might verge on the political. Above all, do not have the Law Lords in the House of Lords; it muddies the somewhat obscure principle of the separation of powers". The amendment does not muddy anything. On the contrary, it brings a very necessary element into the taking of decisions that would be covered in the provisions to which the amendment relates. I strongly support the amendment, because there is a special function to be performed here by a senior judge and in particular by the Lord Chief Justice. I very much hope that the amendment will be accepted.

Lord Whitty: My Lords, as anticipated by the noble Baroness, Lady Carnegy of Lour, I am strongly opposed to the amendment. Listening to most of these contributions, I feel that I live in an entirely different world from that of most of the people who have spoken today. I am particularly surprised at the noble Lord, Lord Neill of Bladen. We need to consider how this will look to the punters out there.
	The noble Baroness has already declared my interest. I speak on behalf of consumers in one sense—in the strict sense that they are the clients of the legal profession—but also more widely on behalf of citizens who are concerned with the safeguard of the public interest, which was spoken about so much earlier this afternoon, when I say that this looks like a carve-up. It is subject to the concurrence—or the veto—of someone who people around the country see as the top lawyer. I know, and Members of this House know, that there is a difference between the judiciary and practising lawyers. Actually, practising lawyers appear before the courts; the courts are their arena. Many of them aspire to be members of the Bench, and many may aspire to be Lord Chief Justice. You cannot be Lord Chief Justice without being a lawyer. There is a difference in function, but there is not a difference in culture, and there is basically not a difference in interest.
	This seems to me to be an occasion where the intuitive view of the general public would be very different from that which the noble Baroness was alluding to. It may be that judges are held in somewhat higher esteem in Edinburgh than they are in south London. Nevertheless, I do not think that this would be seen as anything but the lawyers attempting to pull back the regulation of their profession to their own. I see that the noble Lord, Lord Currie, is no longer here, but it is almost as if the chair of Ofcom were appointed subject to the concurrence of Rupert Murdoch, or the chair of the Competition Commission were appointed subject to the concurrence of the chair of Tesco. That is the public appearance. I am sorry, but legal services are, in that sense, no different from any other service to the public and to consumers.
	I make this other point: that any appointment by a Secretary of State, whether it be the Lord Chancellor or anyone, is subject to the proceedings which the noble Lord, Lord Neill of Bladen, has greatly advanced, and they are transparent proceedings. They are understood in all these areas of regulation, but the idea that the chair of the regulatory authority should be subject to the concurrence of those who are being regulated seems to me to be a complete nonsense and undermines the intention of the Bill. The idea that the Bill alters the balance between the independence of the legal profession and the state is a complete misunderstanding of the intention, the content and the letter of the Bill. It attempts to change the balance of power between the legal profession and its clients, and we have been given enough examples during the Bill's earlier stages of when that relationship has clearly broken down and where we need a regulatory authority that is truly independent of the profession. I do not think that this amendment would in any way advance that perception among the general public.

Lord Campbell of Alloway: My Lords, the speech of the noble Lord, Lord Whitty, runs on to the rocks of logic. I understand what he is saying, but at one point he said, "It all depends on how the public look at it". I think I am putting that fairly, but what would the public say about putting a professor of philosophy in charge of an organisation dealing with health, or vice versa? The noble Lord misjudges the public appreciation, and the public will not look at each profession or service in one way. They will be content with someone chosen as an expert—an acknowledged independent operator in that profession.

Baroness Butler-Sloss: My Lords, the noble Lord, Lord Whitty, clearly represents a considerable section of the punters. But others of us—and I, despite having been a judge, also meet the punters—do not entirely share his view of what the general perception of the amendment would be. We must remember that the Legal Services Board will be the linchpin—the absolutely essential part—of the whole Bill. Its chair will be the person who sets the tone. We have to remember that he is setting the tone for lawyers and that some input from the Lord Chief Justice, who is not just another lawyer, is essential. I respectfully endorse everything that the noble Lord, Lord Neill of Bladen, has said in moving the amendment.

Viscount Bledisloe: My Lords, I venture to take part in this debate because a large part of my practice for the past 25 years has taken place abroad—from practising in foreign countries and from receiving work from foreign countries. That, I am told, contributes something like £2 billion a year to our balance of payments—not personally, I am sorry to say.
	One of the reasons why the English legal profession gets work from abroad is that we are seen to be independent. My main country of practice is one where the standard of lawyers is extremely high and there is no need to consult the English Bar—particularly me—for greater legal knowledge. But what that country values is that the English legal profession is totally free from government pressure, interference or influence. That is not true of most of the countries from which work comes to the English Bar. There is a very serious risk that that trade will be damaged if it is thought that the English legal profession has lost that independence from government. I am not saying that that will have happened, but we are talking about perceptions and, frankly, the clients that I am talking about are punters of considerable importance who fully understand what is going on. They do not think that the Lord Chief Justice is just another lawyer—they know well what he is; they have seen him; they have Lord Chief Justices themselves.
	There is a great risk that that trade—for which I no longer receive much benefit, so I am not defending my own income—will very seriously be damaged unless it is made abundantly plain on the face of the Bill that this system of regulation is totally independent of government.
	That is what I intended to say principally, but I cannot let pass the outrageous words of the noble Lord, Lord Whitty, without some comment. To suggest that the Lord Chief Justice is the same as a press tycoon is outrageous, unfair and totally inaccurate. After all, he is not the customer with whom the board will be dealing; he is an independent person who will receive the product of its work. It is in his interest to see that the board works well and produces good lawyers. It is not the judges who will receive the disbenefit of errors if the board gets it wrong. I really think, first, that the noble Lord, Lord Whitty, on reflection, should apologise and, secondly, that we should ignore his remarks.

Lord Whitty: My Lords, the House can ignore my remarks if it likes, but the point I was making was that the regulated should not appoint the regulator.

Baroness Butler-Sloss: My Lords, he is not the regulated.

Lord Whitty: Well, my Lords, he is part of the legal structure of this country. As far as the vast majority of the people in this country are concerned, and if you went out into the street and asked 100 people, "Does the Lord Chief Justice represent the legal profession?", that must be the answer. We are trying to establish a system of regulation that has the confidence of the people.

Noble Lords: Order!

Lord Carlile of Berriew: My Lords, if the noble Lord is making another speech, perhaps he should answer the question directly. How on earth can he say that the Lord Chief Justice is one of the regulated? Surely that is a remark born of crass ignorance, if I may respectfully say so.

Lord Whitty: My Lords, whether that was respectful or not, I am not entirely clear; compared with some noble Lords' remarks, that no doubt is the case. I am trying to reflect here how this will be seen by the general public. I am not saying, in the words of the noble and learned Baroness, Lady Butler-Sloss, that there should be no influence brought to bear by the legal profession or by the Lord Chief Justice; I am saying that the appointment should not be subject to the veto that "with the concurrence of" actually means—that I am opposed to that.

Lord Campbell of Alloway: My Lords, this is contrary to the rules—well, not rules, but contrary to the Companion. This is Report and it is totally out of—I cannot say "out of order", because we do not have order, but it is contrary to the Companion.

Lord Mackay of Clashfern: My Lords, since I have not spoken thus far, I am probably in order—even at Report stage. I do not practise in England and, therefore, can exclude myself completely from the battalions of those who will be regulated by the Legal Services Board. It is a mistake on the part of the noble Lord, Lord Whitty—and I understand perfectly why he said it—to say that the Lord Chief Justice is part of the regulated. He is not; the judiciary is not subject to the regulation of the Legal Services Board. The board, among others, will regulate the practices of those who have rights of audience in the courts, and the Lord Chief Justice is now, by virtue of the actions of this Government with the support of Parliament, the head of the judiciary. Therefore, the Legal Services Board will operate in an important way within the precincts of the courts by regulating those who have rights of audience there. Surely it is fundamental that those who have rights of audience in the courts should, in connection with the regulation, have an input from the head of the judiciary—the Lord Chief Justice.
	When confronted with that point at Second Reading, the noble and learned Lord the Lord Chancellor said, in a phrase which I was astonished to hear, that the Lord Chief Justice is "rightly regarded" by consumers as just another lawyer. That does not say much for the Lord Chancellor's input into the appointment of the Lord Chief Justice. The Lord Chief Justice is selected by Her Majesty the Queen on advice that she receives from Her Majesty's Government, and under the new system there will be intermediate stages before that advice is given.
	To suggest that the Lord Chief Justice is just another lawyer is to undermine the whole system of judicial determination. If our consumers have a dispute, ultimately they will have to go to the courts. The courts regulate the rights of consumers against those whose products they consume or whose services they take, and if their clients, the consumers, do not have confidence in the courts of law, our system will be in the gravest possible danger. I believe that the Lord Chief Justice enjoys in the community, not only because of his position but also because of the way in which he fulfils that position, a confidence which is unlikely to be shared by any Minister of the Crown.
	It is perfectly proper that Ministers of the Crown should have responsibility for selecting and appointing those who take part in the Legal Services Board, which is a creation of Parliament with nominations by the Executive. But I believe it is right that, where the board has a function in relation to the rights of audience in the courts, of which the Lord Chief Justice is the head by the determination of Parliament, the Lord Chief Justice should have a say in who is to be ultimately responsible for managing the control system which is to be put in place. Therefore, I very strongly resent the idea that the Lord Chief Justice is "rightly regarded" as just another lawyer, compared by the noble Lord, Lord Whitty, with an official of Tesco, which I regard as a very high and important position, and also with Mr Rupert Murdoch, with whom I have not had much acquaintance. The Lord Chief Justice is well known.
	The noble Lord, Lord Whitty, pointed out that my noble friend Lady Carnegy of Lour might be familiar with the situation in Edinburgh. I am reasonably familiar with the situation there but I also have a certain familiarity with the situation in this part of the world. In so far as we have a United Kingdom, it is important that the judiciary is regarded as having high status in all parts of that kingdom. I strongly support the amendment proposed by the noble Lord, Lord Neill of Bladen.

Baroness Howe of Idlicote: My Lords, I am probably better known as a supporter of the citizens and consumers out there than almost anything else. It was therefore with a somewhat divided mind that I initially approached this whole subject. However, I no longer believe that consumers and citizens will be offended by what is proposed in the amendment—far from it. I say that because of the changes that have already been made concerning the departments and the beginnings of doubt about the separation of powers between the Executive and the judiciary. It is crucial that in future they are seen as separate and independent, and surely, for the sake of confidence in the whole legal profession, it is not too much to ask for the Lord Chief Justice to have this minor but important role of concurring with an appointment. I am a huge admirer of Which?; indeed, I think that I sponsor one of its people who help your Lordships' House. However, in this case, I am afraid that I take the opposite view.

Lord Brennan: My Lords, I declare an interest in that I was chairman of the Bar in 1999 during the passage of the Access to Justice Bill. That experience honed my capacity for objective thinking about my professional status in society and in its service. In the eight years that have passed since then, I suspect that this is the next major Bill to deal with the way that our legal services operate in this country. It is exceptionally important.
	The noble Lords, Lord Neill of Bladen and Lord Carlile of Berriew, mentioned the importance of principle in relation to the way in which the Legal Services Board should operate and be seen to operate. To principle, I want to ally practice. Lawyers such as myself who travel abroad to work are often privileged to hear people saying, "How lucky you are in the legal system that you have with its independence, its integrity and its service of democratic value". And we take it for granted. They do not. When I go abroad, people say, "How is it you get so much work in London from around the world?". From a group of lawyers who probably number a couple of thousand at most comes £2 billion-plus a year in foreign earnings. That has gone up by 10 or 15 per cent over the past 10 years and is climbing. Adopting the pungent example of my noble friend Lord Whitty, do we seriously think that the financial punters in New York, Frankfurt and the other major legal cities in the world are not looking, as they always do, with the greatest care at the changes that we are making to our profession, waiting to seize, as they will, on any argument that will undermine our tradition of independence so that they can get the work? It is competition; it is the way the world works. That is practical.
	The members of senior firms and senior barristers' chambers who wrote to my noble and learned friend the Lord Chancellor and the Chancellor of the Exchequer about this issue were not oblivious to the needs of consumers. They were of the view—rightly, in my opinion—that this particular point had no adverse impact on the rights of consumers but, rather, that it sought to protect the foreign earnings made by the British legal profession. If you were in business out there, which we are reminded to think of, making £2 billion a year—a business where all the people in it perceived a serious risk—and you measured the risk with a perception of the vagueness that we have heard described, there would be no contest: trade would win every time. If it is to win, what will most accommodate maintaining our independence without in any way impinging on the objective of the Bill? The answer is to use the Lord Chief Justice. The House will forgive me if I remind your Lordships that only two years ago we passed the Constitutional Reform Act in which we legislated for the Lord Chief Justice of this country to be head of the judiciary, to be in charge of the administration of justice. It was called a concordat. He was given the right to report to Parliament—and is he just another lawyer? Please!
	We are talking about the constitutional state of our country when we talk about the Lord Chief Justice. His role in this area is of limited effect, but it is to establish his concurrence that the chairman of the Legal Services Board is the kind of person who, in the opinion of the Lord Chief Justice, will meet the regulatory objectives. Under our constitutional concordat, the Lord Chief Justice is in charge of the good administration of justice. The amendment seeks no more than that. Is there anybody who would speak against it? I must confess to my noble friend Lord Whitty that the two organisations representing consumers to which I have spoken in the past few days have no particular interest in this point.
	Has it been done elsewhere? Yes, in Scotland, where the Lord President has this function. It is not party politics; nor is it consumer rhetoric. It is an important trading aspect of our country with limited protection sought by using the person we regard as essential to our constitutional legal system. If it is not to be concurrence, why not consultation, as the Joint Committee suggested? I hope that the Government will give serious thought to that. Of course, they can limit consultation to the Lord Chief Justice because of his constitutional role. I would much prefer that to "concurrence". My noble friend, with great charm and ability, has conducted the Bill so far most effectively. The only test I shall ask of her is that at this time she seeks a way towards consultation rather than concurrence; if we are told that it is not consultation, we are left with concurrence. I am sure that, on reflection, the Lord Chancellor either now or at Third Reading, will not risk £2 billion a year for some consumer perception.

Lord Woolf: My Lords, it is with some hesitation that I intervene at this stage of the debate on this amendment. In view of some of the things I have heard since I re-entered the Chamber, perhaps I should disclose an interest as a former Lord Chief Justice.
	I apologise for not being here, but the reason may have some relevance. Tomorrow a new commercial court will be opened for Dubai's financial centre. The chief justice of that court is Sir Anthony Evans, who is a distinguished judge and arbitrator, and a former member of the Court of Appeal. The court will apply the common law. It is being established in such a way because of the belief in the qualities of the legal system of which this country is the mother, and of the standards of judicial behaviour pertaining in this jurisdiction. I was about to engage in preparing a greeting to that court because I am now the president of a similar, sister court in the Gulf state of Qatar. Again, that court will apply common-law standards. I thought that it might be relevant to explain my absence; I was preparing that statement, which must go off tonight, as the arrangements for me to appear on video, as originally intended, have gone awry.
	Even though I do not vote in this House because I also sit here as a judge, I want, if I may, to take the opportunity to make two more points. First—this should appeal to Ministers—I suggest that this amendment accords with the concordat that I was responsible for negotiating with the noble and learned Lord the Lord Chancellor to become a Minister of Justice. We saw the importance of a partnership between the role of the Lord Chancellor and the new role of the chief justice, particularly in relation to situations where it was important that it should appear that the roles of the Lord Chancellor and the Lord Chief Justice should be seen to be independent, but where they both had a legitimate interest to protect.
	As to that legitimate interest in the present situation, the independence of our judiciary is dependent on the independence of our legal profession. We could not have an independent judiciary were it not for the independence of the legal profession from which our judges are selected. They become judges with that independence as part of their natural instinct. It is not something that they have to relearn when becoming a judge; it is the independence that they have practised throughout their professional life. It is so important that we take what steps we can to ensure that that independence survives and flourishes.
	The board will be only one factor in the future of the legal profession that can have an impact on the independence to which I have just referred. Looking into the future, because of the constitutional changes that we have passed into law, we have to recognise that the role of the Lord Chancellor will evolve and change. We have to recognise that his involvement in the court system will be diminished not because of any wish on his part, but because of his other commitments. The very heavy responsibilities that he will have as Minister of Justice, with which no Lord Chancellor has ever been saddled, mean that he will not be so closely involved with the judiciary or with the legal profession, no matter what his personal inclination may be. He will be able to delegate to other Ministers many of his responsibilities. But a Lord Chief Justice does not and cannot do that to the same extent, if at all. The important matter to be borne in mind is that in requiring his concurrence, there will at least be a conversation of the sort that the concordat again and again envisaged between the Lord Chancellor and the Lord Chief Justice of the day, where one can be assured that the members of the board will be of the quality necessary to ensure the quality of the legal profession. I support the amendment, although, for the reasons I have given, I will not vote.
	I shall say a final word to the Minister, if I may. I agree with the noble Lord, Lord Brennan, about her desire to meet the interests of those who have a point to make when promoting a Bill to the House. I echo what has been said about a desire to conciliate and mediate; that is highly desirable. The spirit with which the concordat was negotiated should be borne in mind by Ministers, including the noble and learned Lord the Lord Chancellor, when they come to make their decisions on the amendment.

Lord Kingsland: My Lords, all of us who tabled the amendment are extremely fortunate that it was introduced by the noble Lord, Lord Neill of Bladen. He brings to what he said the enormous prestige of his career. He has been chairman of the Bar and chairman of the Senate of the Inns of Court, and he has had a towering practice at the Bar for many years, as well as great experience of public life in different roles. The mere fact that the amendment was introduced by the noble Lord ought to take us to at least a 75 per cent chance of victory, even before the Minister stands up and speaks.
	When the Minister does stand up and speak in the next few minutes, I anticipate that she will say three things. She will underline the point, made by the noble and learned Lord the Lord Chancellor, that the Lord Chief Justice is a lawyer, although she may not make that point quite as strongly as she would have done had the noble Lord, Lord Whitty, not spoken in the intervening period. Nevertheless, given the fate of the noble and learned Lord the Lord Chancellor over the past few years, it may well be just a matter of time before there is no requirement for the Lord Chief Justice to be a lawyer, either. I hope that it will not come to that.
	Two other points that I know the Minister will make deserve more weight in my reply. First, we already have the guarantee of the Nolan procedure to select the chairman of the Legal Services Board. The noble Baroness is right: the rules will apply. But the advertisement and terms of reference for the appointment are drafted solely by the Government. The chairman of the selection committee is almost invariably a senior civil servant. Although I have enormous respect for the Civil Service, particularly for its senior branch, that is an insufficient guarantee of the independence that your Lordships' House seeks.
	Secondly, the Minister will say that the Legal Services Board is a regulatory authority and that the chairman will be like the chairman of any other regulatory authority, such as that for electricity, gas or communications—Ofcom, for example. In those circumstances, the Secretary of State always has the last word on who gets the post, so why should it be any different for legal services?
	The Minister will say that legal services are just like those other public services. That argument is totally misleading. The noble and learned Lord, Lord Woolf, the former Lord Chief Justice, put his finger on the essential reason why: the intimate link between the independence of the judiciary and that of the Bar and the solicitor's profession. The link is particularly close because of our adversarial system. When a judge listens to counsel arguing in front of him, he takes it for granted that they are people of probity, that all the evidence relevant to the case will be brought before him by those lawyers and that nothing will be hidden. If one or other of those lawyers knows something that is adverse to his case, he will put that evidence before the court. If you do not have an independent legal profession appearing in front of the judiciary, the judiciary cannot take independent decisions, because it does not have independent and dispassionate evidence on which to base them. You cannot have an independent judiciary without an independent legal profession appearing in front of it.
	Why, on the one hand, were the Government so obsessed with ensuring that the selection of judges be done wholly separately from the government mechanism by the Judicial Appointments Commission, with another commission to select that, yet in this case they endorse a selection that is done solely by somebody who everybody now accepts is likely to be, in future, a person without a legal qualification? The independence of the judiciary and the profession are intimately linked. The approach of the Judicial Appointments Commission, and the manner in which it is appointed, is the correct one for the appointment of the chairman of the Legal Services Board. I urge the Minister to be influenced by what she has heard tonight and to change her position on the amendment.

Baroness Ashton of Upholland: My Lords, the noble Lord, Lord Kingsland, got one out of three right. I have absolutely no intention of treading anywhere near referring to the Lord Chief Justice as a lawyer and I was not going to say that this is like any other regulatory body, because it is not. The noble Lord was right that I will talk about the process. I see the Benches filling up, so I already sense my fate. I want noble Lords to have information about the procedure as it would be, however, so that they can make their decisions at least with that in mind.
	First, I have had the privilege—as a non-lawyer, of course—of knowing two Lord Chief Justices: the noble and learned Lord, Lord Woolf, and the present incumbent, the noble and learned Lord, Lord Phillips of Worth Matravers. They have both given me the benefit of their great wisdom and it has been an enormous privilege to know them. They are also great fun, as noble Lords will know. However, there is something to be said for the fact that, until I became a Minister, I did not really understand the role of the Lord Chief Justice or where he sits in the hierarchy. I am not trying to take anything away from that, but we must recognise that not everybody automatically understands what his function is or can differentiate it in quite the way that noble Lords obviously can. I did not. I do not consider myself either unintelligent or incapable of understanding how the courts work, but I would not have been able to describe it properly.
	I shall explore the themes of trust and independence. On trust, the noble Baroness, Lady Carnegy of Lour, quite reasonably said that perhaps the Lord Chief Justice and the senior judiciary would have greater standing than politicians. The noble Baroness is right. I was looking at some polling evidence on whom people trust, because I do that kind of thing. Politicians do not do very well. We do better than tabloid journalists and people like that, but we do not do anything like as well as the judiciary, which has gone up in people's standing in the past 12 months. As a member of the Department for Constitutional Affairs, I am proud of that. It is important that the respect and admiration for our judiciary continue to be promoted, pushed and supported by the department. It is also incredibly important for our democracy and society. Trust is an important part of this. When we think about the trust in the system, it is important that we recognise what we are trying to do with this legislation.
	Noble Lords are concerned about independence. Partly, their worries concern what might happen in the Ministry of Justice. When we were in Committee, I did not know that it was to be announced; I heard about it probably only several hours before your Lordships did. The idea has been in the air for as long as I can remember. On occasion, I joke that, because I work in the European Union, I do not often talk about the Department for Constitutional Affairs because nobody understands what it is. I tend to shorthand it to "Ministry of Justice" or something like that. For me, the changes will simply be a continuation of that. I do not yet know the detail of what the changes will mean, not least for my own role in your Lordships' House, which I suspect will expand rather than contract in terms of the amount of work—I cannot wait. However, I understand that there is an important aspect about where eventually accountability for the Ministry of Justice may sit, whether in your Lordships' House or in another place.
	The responsibilities laid out for the Lord Chancellor remain. They are set out clearly in the Constitutional Reform Act. The fact that someone is not a lawyer, or indeed not a Lord, does not mean that they would not take those responsibilities seriously. I say that as a non-lawyer because I hope that noble Lords recognise that I take my responsibilities very seriously. In another place, there are people of extremely high calibre on all Benches who I think would be suitable. However, I am rooting for the current Lord Chancellor, as noble Lords would expect.
	I take what the noble and learned Lord, Lord Woolf, said about the concordat. It does not form part of legislation; it is a separate document. He is right to refer to the spirit of the concordat. It is not in the Bill, but it is taken very seriously by my noble and learned friend the Lord Chancellor. In making the appointments, we have always made clear the need to consult different people, including, I am quite sure, the Lord Chief Justice, as part and parcel of what may happen.
	The argument rests on what should be in the Bill and what we are trying to achieve. The critical issue raised in all the contributions—and they were very powerful—was to ensure that the process is independent. The Commissioner for Public Appointments, appointed by Her Majesty the Queen, is independent of government. We should be very proud of OCPA because it sets the standards for recruiting. It regulates the recruitment process for appointment to public bodies wherever Ministers are involved. I have witnessed and experienced that process and I know that it is very rigorous. There is no question of independence being relegated. Codes of practice have to be maintained. It is critical that there is equality of opportunity, probity, openness, transparency and proportionality. Those are essential elements in making sure that appointments are made properly and appropriately.
	We believe that we have an independent process that is absolutely clear and has worked extremely well. We believe that it is recognised as being of an extremely high standard and that it will not affect the independence of the legal profession, or indeed of the judiciary. We believe that it will stand us in good stead. In no circumstances does it prevent the Lord Chancellor from talking to and consulting the Lord Chief Justice or, indeed, anybody else. Noble Lords will remember that the board will have a majority of lay people sitting on it. Initially, for the first appointment, it will have a lay chair. There may well be other people whom the Lord Chancellor would wish to consult in the process of appointments. Indeed, one of the arguments made—in Committee, we discussed whether to put this in the Bill—is that there are other bodies that noble Lords would be comfortable with the Lord Chancellor consulting, perhaps concurrently.
	I have discussed this matter at great length with my noble and learned friend and with the Minister with policy responsibility. We have considered it carefully. I am aware of the strength of feeling in your Lordships' House, but we believe that questions of trust and independence are satisfied by the process, which has held us in good stead for a series of key appointments that have already been made. I say that on the basis that I yield to no one in my respect for the Lord Chief Justice—both the present and the previous ones—and for the critical importance of the independence of the legal profession.

Lord Maclennan of Rogart: My Lords, before the Minister sits down, in underlining the independence of the Lord Chief Justice she has not produced a single argument against the amendment. She seems to be resting her case on the public perception of the independence of the means of appointment introduced by Nolan. I put it to her that the Nolan procedures are far less well known and far less well understood than is the independence of the highest member of our judiciary.

Baroness Ashton of Upholland: My Lords, I was not for one second suggesting that public perception was involved in this. I agree with the noble Lord, Lord Maclennan of Rogart, that if you asked 100 people in the street you would find that they would be able to tell you much more about the Lord Chief Justice and his independent role than about OCPA, because who has heard of OCPA unless they are involved in it? That is not the point that I am making. My point is that, when you are trying to set up a body, you look at the process that is most appropriate, bearing in mind the issues of independence, which I completely accept and agree with. Here we have a body that will have a majority of lay people on it, with a lay chair to begin with. It has a particular and important function, and we have in government a process that is well regarded for providing independent, high-quality appointments.
	Alongside that, it is completely reasonable for my noble and learned friend the Lord Chancellor to decide that he wishes to consult various people. The noble Lord does not agree with me, which is absolutely fine, but I just want to make sure that he understands that I am not making the point that he thought I was making. The approach is completely reasonable and is in the spirit of the concordat. Noble Lords will disagree with me but it is important that I make the point clear. This is not, for me, so much about public perception. It is about the fact that we have a process that works and which we believe we should use. We think that that is the right way to proceed.

Lord Wedderburn of Charlton: My Lords, I have a question for the Minister. I was about to say "my noble friend", but in spirit I feel that I can still put the question in that form. I am sure that it would be of great importance to noble Lords, if their opinion is to be sought on this matter, to know whether—I do not ask for a commitment while the Minister is on her feet—it would be possible to consider such an amendment if it had not been framed in quite the terms that it was. In view of all the points that have been made about the independence of the Bar, with which I agree, and about other matters relating to the Lord Chief Justice's special position in our constitution, might consideration be given at a later stage to the appointment being made after consultation with the Lord Chief Justice?

Baroness Ashton of Upholland: My Lords, the debate has been extremely interesting, passionate and important, but it is at the end of a process. I have been in discussion with a number of noble Lords for some time about this issue, so this debate is a conclusion in a sense. Noble Lords have to decide what they want to do. I cannot make any commitments at this stage. I will of course look later at what noble Lords have told me that they want me to do and we will no doubt continue our discussions thereafter.

Lord Neill of Bladen: My Lords, one thing that I learnt at the Bar was to keep your reply short, otherwise your case usually gets worse. I am almost embarrassed, and I am certainly humbled, by the cloud of witnesses who have appeared on my side. A former Law Lord, a former Lord Chancellor, a former Lord Chief Justice and many colleagues at the Bar have rallied to my cause. The noble Lord, Lord Whitty, was an exception to those speaking in my favour, but I think that he has received a magisterial answer from the noble and learned Lord, Lord Mackay of Clashfern, and it would be otiose for me to add a syllable to what he said.
	The noble Lord, Lord Borrie, raises the interesting constitutional question of whether we would in some way tamper with the office of Lord Chief Justice if we were to pass the amendment. For my part, I do not think so. The Lord Chief Justice carries a huge administrative burden today. Lord Chief Justices have done likewise over the past 20 or 30 years, and it has killed some of them. I think that the speeches were so eloquent and that the expression of opinion was such that it is right for me to invite the House to divide on this issue.

On Question, Whether the said amendment (No. 7) shall be agreed to?
	Their Lordships divided: Contents, 175; Not-Contents, 134.

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Hunt of Wirral: moved Amendment No. 8:
	Schedule 1, page 112, leave out line 7

Lord Hunt of Wirral: My Lords, the amendment would omit sub-paragraph (1)(b) and thus,
	"the Chief Executive of the Board".
	We hear a great deal about good corporate governance, and in governance terms it is surely unacceptable that the chief executive of the Legal Services Board should be a member. The LSB should, of course, be independent and free to act in the context of its statutory duties, and ensuring that the chief executive officer is not a member contributes to that objective. The amendment would not prevent the chief executive providing advice and guidance to the Legal Services Board, but would reinforce his or her independence and his or her position as the accounting officer for the board. I am very grateful to the Law Society of Scotland for having brought this to my attention, and I have much pleasure in moving the amendment. I beg to move.

Baroness Ashton of Upholland: My Lords, it is always nice to have a new issue to consider in the course of our deliberations. I have looked at what other regulatory bodies have been doing. Like the noble Lord, Lord Hunt of Wirral, I can think of boards—I have sat on some of them—in which the chief executive plays one role and others play a different role. The best comparisons that I could think of were other bodies involved in regulation. Again, I am not trying to suggest that this is not a different, even unique, set of circumstances. None the less, comparisons can be drawn.
	We looked particularly at the examples of Ofcom and the FSA, which have identical arrangements to those proposed for the boards in this legislation. Indeed, we looked again at Sir David Clementi's original work, and this was his favoured approach. It brings together the executive and non-executive functions and allows the chief executive, who has an incredibly important role, as the noble Lord will agree, to help to drive the strategic direction of the board. In some organisations that I can think of, the finance director may well be a full member of the board too, because of his responsibilities for finance. Again, that is not necessarily the case, but the Bill allows for someone involved in that way to be part of the board. This is simply the choice that we have made. We think that it is better, in this context, to follow the example of Ofcom and the FSA and bring together the executive and non-executive functions to get that strategic direction. Again, this refers back to Sir David Clementi. I, too, am grateful to the Law Society of Scotland for raising this issue with us, because it gives us a chance to consider it. Having considered the matter, however, I am pretty content that our approach will be a good one and that it will give the chief executive a proper footing on the board to enable it to have appropriate direction.

Lord Hunt of Wirral: My Lords, it is fascinating that the Minister should give the example of the Financial Services Authority. If I recall correctly, the original proposal for the FSA was that the chairman and chief executive should be the same person. Indeed, I moved an amendment to the then Financial Services and Markets Bill suggesting that it was wrong for the person who was chairman and chief executive to sit on the board because they were very different roles. As I recall, the Government initially resisted that amendment. However, this House insisted on its view, and the Government eventually conceded and split the role, but not until Howard Davies had moved on. It was a wonderful compromise. It is therefore quite remarkable that the Minister should choose that example. In many ways, it was not what the Government wanted; they wanted the chairman and chief executive to be the same person. They used the same arguments for Ofcom and a number of other regulators by saying that there was no place for corporate governance; namely, that there should be a separate chairman and chief executive.
	I do not want to embark on a great battle of the boards, but I could start reciting a whole list of boards on which the chief executive does not sit, particularly when he is the accounting officer and offers advice and guidance to the board. I therefore hope that the Minister will think again about this in the light of my comments and that she might find some better examples that would persuade us. In the mean time, however, I will carefully reflect on what she has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Ashton of Upholland: moved Amendment No. 9:
	Schedule 1, page 112, line 9, leave out "Secretary of State" and insert "Lord Chancellor"
	On Question, amendment agreed to.

Lord Hunt of Wirral: moved Amendment No. 10:
	Schedule 1, page 112, line 9, at end insert "with the concurrence of the Lord Chief Justice"
	On Question, amendment agreed to.
	[Amendment No. 11 not moved.]

Lord Kingsland: moved Amendment No. 12:
	Schedule 1, page 112, line 14, at end insert—
	"(4) An order made under sub-paragraph (3) is subject to affirmative resolution of both Houses of Parliament."

Lord Kingsland: My Lords, Amendment No. 12 deals with the powers of the Lord Chancellor in paragraph 1(3) to determine the size of the Legal Services Board. In particular, the paragraph states:
	"The Lord Chancellor may by order amend sub-paragraph (1) by substituting for the limit on the maximum number of persons for the time being specified in paragraph (c) of that sub-paragraph a different limit".
	Some of your Lordships may recall that this matter was raised on the first day of Committee. I raised it to express my concern about the scope that the wording of the provision might give to the Secretary of State, now the Lord Chancellor, for manipulating the size of the board, perhaps for malign purposes. In response, the Minister was exceedingly anxious to reassure me that the purpose of the provision was entirely benign; that there might be occasions in the future when it would be necessary to grant the Legal Services Board a wider range of functions. In that context the board would need to be supplemented by one or more individuals.
	I apologise to the House for quoting the noble Baroness at some length, but it is germane to the point that I wish to tease out. She said:
	"The issue that the noble Lord, Lord Kingsland, raises is that the Lord Chancellor may be able to sneak something under the wire by negative procedure".
	The power to expand the board in Schedule 1 is by negative resolution. She continued:
	"One way in which to address his concerns would be for me to take the matter away to allow us to make it an affirmative rather than negative resolution. That would mean that, if the numbers were to be expanded, it would have to come through a debate in this Chamber and another place, so nothing could be done that would suggest that the Secretary of State was trying to increase the numbers for other reasons. The noble Lord also has the knowledge of my remarks, which are in Hansard, about the purposes to which the provision will be put. If there were other purposes, the Minister—whether it was me or another Minister—would have to explain in full detail to this Chamber and in another place precisely what was being done and why".—[Official Report, 9/1/07; col. 163.]
	So, at the suggestion of the noble Baroness, I have tabled my amendment for an affirmative resolution, which I invite her to support. I beg to move.

Baroness Ashton of Upholland: My Lords, the noble Lord, Lord Kingsland, of course quoted me accurately. I took away this amendment and looked to see whether we should remove the negative and put in the affirmative procedure for the reasons I outlined in Committee. When we looked at it, I was struck by two problems. I should say that I stand by my remarks about the purpose to which it should be put. The first difficulty was making sure that we would be able to find parliamentary time for debate and, secondly, whether the tradition of always going along with the Delegated Powers Committee was something that I wished to move away from. These may not seem like very good reasons to your Lordships. Indeed, if this were a matter of great importance, that would be completely reasonable.
	However, the purpose of this clause is exactly as I said in Committee. It makes sure that if gaps need to be addressed, not least because the Legal Services Board takes on new functions, that could be done properly and speedily. Secondly, it would also enable us to reduce the size of the board if that were appropriate, which is something we did not touch on, but on which I have had many conversations since Committee stage. I know that we will come to the bureaucracy and cost of the board, and the way in which it functions and so on, particularly its relationship with frontline regulators. None the less, those are important issues.
	I apologise to the noble Lord, Lord Kingsland, because I have not done what I said I would do. Before we got to this stage of debates, I indicated that there were some issues on which I have had to reflect again. This is one of them. The negative procedure will still give your Lordships the comfort needed to make sure that this process works well and is in line with what the Delegated Powers Committee recommended; namely, that it saw no need for this to change. That is my preferred option at this point.

Lord Kingsland: My Lords, I am most grateful to the noble Baroness for her reply; but I will not disguise from your Lordships' House my dismay at hearing it. I will not press the noble Baroness about the status of her statement at col. 163 of the Official Report on 9 January 2007. However, if it is not a commitment, it is as close to a commitment that one could possibly get. The decision by the noble Baroness not to support an affirmative resolution undermines her earlier statement about the motives of the Government in including this provision in the first place. The noble Baroness said that the proof that the Government have honourable intentions will be through the ability of your Lordships' House to have a debate when the affirmative resolution is tabled.
	The noble Baroness gave one or two other reasons for the fact that she thought again about an affirmative resolution, but I must say that I found them exceedingly unconvincing. The idea that the Government have now decided to move away, as a constitutional practice, from tabling affirmative resolutions is risible. Bills nowadays are characteristically skeleton Bills and one sees no change in Government legislative policy.
	I do not accept that a negative order is the same as an affirmative resolution. There are strong constitutional conventions about praying against negative orders, which the House—I hope the noble Baroness will agree with me—respects. I shall not press this to a vote, but I will seriously consider bringing forward this matter at Third Reading. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral: moved Amendment No. 13:
	Schedule 1 , page 112, line 15, after "Lord Chancellor" insert "and Lord Chief Justice"
	On Question, amendment agreed to.

Lord Kingsland: moved Amendment No. 14:
	Schedule 1 , page 112, line 26, leave out "never been" and insert "not within the last ten years practised as"

Lord Kingsland: My Lords, I can make this point exceedingly telegraphically. This amendment is about the definition of a lay member. Your Lordships may recall that the first chairman of the Legal Services Board is required by the schedule to be a lay member. The schedule goes on to define what characteristics a lay member should have, one of which is that he should never have been an authorised person as defined under the Bill. In Committee, I suggested that where someone had very early in their career acquired a legal qualification—perhaps a law degree and had gone on to qualify professionally—but thereafter had practised for only a very short time and then had 10, 15, 20 or even more years doing something else, it would be undesirable to exclude that person from being a candidate for the chairmanship of the Legal Services Board. The noble Baroness said that she would think about it. She has now had time to think about it and I should be most interested to hear her response. I beg to move.

Lord Lyell of Markyate: My Lords, I rise almost as telegraphically as my noble friend to support this amendment, which I hope will find favour with the noble Baroness. It seems to me to be moving against the spirit of the age to rule out someone who many years ago had obtained a qualification from being able to play a very useful part as a lay member of the board if in all other respects he would seem to be a good member. In saying against the spirit of age, one can consider the position of juries. Members of the Bar and solicitors can now sit on juries whereas they could not in the past and it has turned out to be a good thing. I hope that that same spirit will apply here and the noble Baroness will see the good sense of this amendment.

Lord Maclennan of Rogart: My Lords, I supported this amendment in Committee. I gave my reasons on that occasion. We want to cast the net as widely as possible to those who would be suitable to discharge this important role. If we introduce the exclusionary principle to the extent that it is in the Bill without the qualification proposed in the amendment, we would limit our capacity to do so in a more unacceptable way.

Baroness Ashton of Upholland: My Lords, I observe for the noble and learned Lord, Lord Lyell, that Peers are now allowed to serve on juries, which is the other change that has taken place. I cannot wait to do jury service.
	I have thought carefully about this issue; more importantly, we have consulted widely on it. We do not say that members of the legal profession cannot serve on the board at all because we expect a mixed membership constituted of appropriately qualified professionals and lay people appointed by the Secretary of State, the Lord Chancellor, after consultation with the chairman of the board. We will look for the best possible mix of skills. Consumer confidence is important in this context, as are effective regulation and professional expertise. For those reasons, we have provided that the board must be comprised of such a mix, with the majority given to lay members.
	We have talked about the case of someone who has been qualified in the legal profession for many years but who had not practised for some time. None the less, they would have experience and an understanding of legal matters. The difficulty lies in trying to define where such knowledge begins and ends: when is someone a lay person or not a lay person? I am a lay person because I do not have any legal qualifications. That is simple and straightforward. There are people who are qualified and legally practising, and they too can serve on the board. Questions arise with those who have not practised for five years, 10 years, 20 years and so on. The noble Lord, Lord Kingsland, has put down a 10-year marker on it, and I understand that from his point of view the period is quite reasonable. However, when my officials talked to representatives from consumer organisations, they were very clear about this, and I too want to make the position clear. They felt it was important for "lay" to mean "lay" in this context. While those with legal training and experience are perfectly able to serve on the board, they should not take the places of lay members. They have argued that we could end up with the whole board being made up of those who at some point had been practising lawyers or were technically qualified as legal professionals. They felt that that would go against the spirit of what we are trying to do here. I shall quote the National Consumer Council in this regard:
	"It is essential that all of the Legal Services Board chairs are demonstrably independent of vested interests".
	In the council's view it is particularly important that the first chair should be lay so that the new organisation can get off to the best possible start in terms of the consumer focus. The council goes on to say:
	"We do not think it is helpful to debate an amount of years when someone who is qualified as a lawyer but is no longer practising can be considered a lay person. This approach would inevitably lead to arbitrary decisions since some individuals might be able to demonstrate an independent outlook within a relatively short period of time, while others might never be able to do so".
	I do not say that that is my view, but I give this as an example of the strength of feeling among other interest groups.
	On the basis that members of the legal profession can serve on the board, that beyond the first chair they can become chairmen of the organisation and that they will be able to contribute positively, we think that there is a good pool of talent of those with experience in other fields to bring to the board and that we are not discriminating in any way against those who are legally qualified. Rather, the board should comprise a broad mix, and to change the definition would mean that it would be possible to end up with no mixture, but a board comprised only of members who are legally qualified. Therefore I am going to resist the amendment, but on the basis that I have consulted widely on it and thought about it with care. On reflection, the balance is about right.

Lord Kingsland: My Lords, again I have to say that I am extremely disappointed with the reply of the noble Baroness. It is not as if there are not plenty of lay persons on the regulatory bodies. A great deal has been made about the desirability of having a high percentage of lay representatives on the Legal Services Board; but is the noble Baroness aware that a large number of non-legal lay representatives serve on the boards of the authorised regulators? Listening to the Government promoting their Bill during the Committee stage, one might be forgiven for assuming that the Bar Standards Board and its equivalent in the solicitors' profession consist solely of lawyers, thus generating the myth that lawyers are regulating themselves. Here I repeat myself, in my view with good reason, in saying that a high percentage of individuals within the authorised regulators themselves are not qualified lawyers.
	Given that, why do we need to be so demanding about the definition of lay members generally? If the Government do not like my amendment, which provides for a period of 10 years not practising, why do they not go for a more demanding period, such as 20 or 25 years? That would at least include a large number of people who happen to have taken a degree in law or who practised as solicitors or barristers at the beginning of their career and therefore might be extremely good candidates. The Government are excluding all that talent.

Baroness Ashton of Upholland: My Lords, they are authorised persons.

Lord Kingsland: My Lords, they are not authorised persons any more.
	While I do not think the Government's argument carries any weight, I am not going to press the amendment because, quite frankly, I intend to press other amendments. If I seek to divide the House on this amendment as well, we will be voting every 20 minutes. However, I must say that I think the Government are being somewhat churlish about this. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Wirral: moved Amendment No. 15:
	Schedule 1, page 113, line 17, after "Lord Chancellor" insert "and Lord Chief Justice"
	On Question, amendment agreed to.

Lord Hunt of Wirral: moved Amendment No. 16:
	Schedule 1, page 113, line 17, at end insert "secure that persons are appointed on merit and in accordance with the principles appearing to them to represent the best practice in making appointments to public office, and must"

Lord Hunt of Wirral: My Lords, the Joint Committee felt strongly that adherence to the Nolan principles should underpin all government appointments, and indeed went further by saying that the Bill should be amended to reflect this. Amendment No. 16 would add to the end of line 17 in Schedule 1(3) a provision that the Lord Chancellor and the Lord Chief Justice must,
	"secure that persons are appointed on merit and in accordance with the principles appearing to them to represent the best practice in making appointments to public office".
	The remainder of the text of the paragraph and the sub-paragraphs then continue as presently worded. Amendment No. 42 is linked with this amendment, providing in Clause 8(6) that paragraph (a) should read,
	"(a) appointed by the Board following public advertisement and selection by the prevailing standards for selection of members of public bodies and appointed on terms and conditions determined by the Board".
	Very strong views were held in the Joint Committee that whatever the rules are at any particular moment, they should be followed in making these appointments.
	I should like to ask the Minister about the procedure that is going to be followed, given the changes made to the Bill this afternoon, so far as the Office of the Commissioner for Public Appointments is concerned. I understand that the practice until now has been that the committee considering candidates would be chaired by a senior civil servant in the Department for Constitutional Affairs. Bearing in mind the background to the debate earlier this afternoon, we ought to have some way of ensuring and enshrining a further degree of independent scrutiny. The principles currently set out in the code of practice underline the fact that the ultimate responsibility for appointments lies with Ministers. They also lay down that there should be an overriding principle of selection based on merit. There are of course the usual provisions about equal opportunities, probity, openness, transparency and proportionality, but to my mind the key provision in that code of practice is the one relating to independent scrutiny. "No appointment", says the code,
	"will take place without first being scrutinised by an independent panel or by a group including membership independent of the department filling the post".
	Having now looked at the code and listened carefully to the Minister in Committee, I think this is an issue that she should address, given that she will be reflecting on the decision of this House earlier this afternoon. In any event, when these appointments come to be made, there must be independent scrutiny. I beg to move.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord for raising this issue and enabling me to talk a little more about the appointments process. We have drafted the Bill, as the noble Lord has indicated, to ensure that best practice is followed in the making of appointments through the monitoring and regulation of the Commissioner for Public Appointments. There is a potential conflict if we try to try to set out, in addition to that, considerations to which the Lord Chancellor and, as in the amendment to which the noble Lord referred that was passed in your Lordships' House, the Lord Chief Justice must have regard, in making appointments, as principles appearing to them as best practice: they could conflict with the principles that have already been set out in the commissioner's code of practice. In other words, we would have a set of principles established for how public appointments are to be made, and then, on the face of this legislation, the opportunity for those making the appointments to look at any kind of practice they consider to be appropriate. The amendment says,
	"appearing to them to represent the best practice in making appointments".
	I fear that that could take us in a very different direction because it would then be a subjective judgment on the part of those making the appointments about what they thought was best practice, as opposed to clearly laid down codes of practice and deliberations by the commissioner.

Lord Hunt of Wirral: My Lords, it would be of great assistance to the House if the Minister could point to the reference to which she has just alluded; namely, the reference in the Bill to the code of practice and the Office of the Commissioner for Public Appointments; I cannot immediately find it.

Baroness Ashton of Upholland: My Lords, it is not in the Bill; it is the practice that is currently used by the Government. The Government have the commissioner, as well as a transparent process. The noble Lord himself has looked at the workings of the code of practice and so on, and that is the basis on which appointments are made. It is not in legislation, not least because the code of practice and the way appointments are made are updated from time to time, based on current best practice and best thinking. I am sure that over the years your Lordships' House has had many debates, not least with the noble Lord, Lord Neill of Bladen, about making sure that there is an opportunity to update best practice and to be mindful of changes that could be made. It is not in the Bill; it is, however, the way in which public appointments are made where Ministers are involved. That has been the way of it, certainly so long as I have been a Minister. We follow the guidance on the basis of the detail I have already given about transparency, openness and so on.
	I turn to who makes the appointments. The noble Lord is right that the way the guidance works is that the panel is chaired by a senior civil servant, but it is not run by them, except in so far as they have a responsibility as chair to ensure that the process is followed properly, that people participate appropriately, that the candidates are treated fairly and so on. They may indeed ask questions themselves, because they have a clear interest, but earlier today in Questions we were talking about the importance of the senior Civil Service and of its independence, in the context of a desire, from the Liberal Democrat Benches in particular, for a Civil Service Bill. None the less, it is important—I think noble Lords would concur with this—that the senior Civil Service is independent, acts with probity and pursues this policy and practice appropriately. That is who chairs it. That is how the appointments have been made. To my knowledge there has been no suggestion that they are handled with anything other than independence and probity. In addition, there is an independent assessor from the Office of the Commissioner for Public Appointments who sits on the panel and makes sure that the OCPA code of practice is followed. So there is already a senior civil servant, plus the independent assessor who ensures that the code is followed, and then there has to be at least one other member of the panel, someone who the OCPA code says represents a public body or other industry groups. In this context that could include a consumer or legal professional, or whatever was felt to be appropriate.
	The guidance says,
	"there may also be, where appropriate, a technical, medical or scientific expert when a specific area of expertise of applicants needs to be tested".
	That would enable the panel to have the additional expertise of someone who had the necessary technical knowledge. Taken as a whole, the guidance ensures that we have the right level of expertise and of impartiality.
	When there is no final decision on the composition of the panel, there have been discussions about what kind of expertise there might be, and, through the implementation working group, what kind of individual might most appropriately be involved.

Lord Campbell of Alloway: My Lords, my name is on the amendment, and I am rather puzzled. Does the chairman, the senior civil servant, have a vote? Would it be possible for us to see these codes of practice? Could they be left in the Library or something? I am getting rather out of my depth. I did not intervene before because I did not want to waste time, but now that I cannot understand what is going on, I am asking for some help.

Baroness Ashton of Upholland: My Lords, I am always happy to supply help. I think the codes of practice are already in the Library, and they are certainly available on the websites. I will ensure that the noble Lord, Lord Campbell, has his own copy of them. I was trying to describe in brief what the guidelines cover.
	These panels do not necessarily end up voting, but if they do, the chair would indeed have a vote—if there were a disagreement on the panel, for example.

Lord Campbell of Alloway: A casting vote, my Lords?

Baroness Ashton of Upholland: My Lords, I am not sure if it would be a casting vote, but we will confirm that to the noble Lord. It is about ensuring that there is a clear decision, and the chair has a responsibility to do so.
	The panel consists of a minimum of three and possibly four people who are impartial and regarded as being able to follow the procedures appropriately. They then put forward their recommendations. My experience of this is that it works extremely well, and the ability of the panel to describe the process is highly regarded. The Office of the Commissioner for Public Appointments ensures that the process works very well.
	That is the process that would be undertaken, and I would not wish to alter by amendment the way we do that. If you have an amendment that says you have people able to make their own judgments about what good practice is, we could end up in exactly the position noble Lords are fearful of, where the Minister decides he does not like that rule so he will have something different. Then it becomes very unclear.
	We do not think it is right to put anything further on the face of legislation. It is important that we use the current procedures and allow them to develop and grow and not be tied by legislation that could eventually be out of date or not relevant. I have already made it clear that we would make sure that these appointments were made according to the principles of merit, probity, openness and transparency that apply to all other public appointments.

Baroness Butler-Sloss: My Lords, I wonder whether I could add one sentence. I am neutral about the amendment, but I have sat on one of these panels. I was invited by the DCA to sit on a panel with a senior civil servant and another independent person. I was the only lawyer—I was not asked to sit on it because I was a lawyer—and there was someone from the Office of the Commissioner for Public Appointments. I confess that I was extremely impressed by the whole procedure and by the senior civil servant who chaired it. We came very amicably to a conclusion with which we were all happy. Since the noble Lord, Lord Campbell of Alloway, has expressed some concern, I wanted to say that although I was neutral about the amendment, the process seemed to be excellent.

Baroness Ashton of Upholland: My Lords, the noble and learned Baroness has breached all procedure on Report, but I am delighted with her contribution, for which I thank her.

Lord Maclennan of Rogart: My Lords, I am sympathetic towards the amendment, although I am bound to say that I take the—

Lord Evans of Temple Guiting: My Lords, I remind the noble Lord that after the Minister has spoken, unless for very carefully specified reasons identified in the Companion, noble Lords may not speak.

Lord Maclennan of Rogart: My Lords, I apologise—

Lord Evans of Temple Guiting: My Lords, we have been through several stages of the Bill; we have talked and talked and talked. We are now on Report and must abide by the Companion, which is very clear on this matter.

Lord Maclennan of Rogart: My Lords, I understood that the Minister had merely given way to the previous speaker. I was hoping to ask, before she sat down, to deal with a point that she had made. I can ask the question very briefly. I certainly was not intending to flout the conventions or the Companion.

Lord Evans of Temple Guiting: My Lords, I am sorry to interrupt but the noble Lord is now flouting those conventions.

Lord Maclennan of Rogart: My Lords, I do not believe that it is flouting the conventions to ask the Minister before she has concluded to answer a particular point she raised. Would she be prepared to consider a form of words which made it plain that the decisions about appointments and the principles to be applied were not being made subjectively by the appointments board but objectively, according to merit and the principles she enunciated?

Baroness Ashton of Upholland: My Lords, I am sorry, but I had sat down. I am not considering a form of words because the process, with the Office of the Commissioner for Public Appointments, works extremely well. It serves the Government and Parliament very well. It is enshrined in the code of practice; it is publicly available; it is open and based on merit. There is no need to say anything other in the legislation than that we will follow that process; it applies to all ministerial appointments and does not need to be in the Bill. That is why I am resisting the amendment; it is not because I do not accept that noble Lords want to see a positive process of merit and transparency. We already have one, and we do not put it in legislation. The Office of the Commissioner for Public Appointments says that putting anything different in the legislation would undermine its work completely because it could not operate in the way it would wish, as we are bound to have said something that would arguably go against what it was doing.

Lord Hunt of Wirral: My Lords, I thank noble Lords for a very interesting debate. I think that it is always open to noble Lords, having heard the Minister, to respond by saying that they do not agree. In fact, that is what I am going to say. I do not agree with the noble Baroness. The reason the Joint Committee took the view it did was because the appointments we are talking about have a closer similarity to the procedures relating to judicial appointments than to the ordinary run-of-the-mill appointments which are made in accordance with the code of practice.
	Let me say to the noble and learned Baroness, Lady Butler-Sloss, that as the person responsible for introducing the code when I was in the Cabinet, I am pleased with the way in which it has evolved. But the appointments we are talking about here must have independence as a key hallmark. I read out the reference in the code to independent scrutiny. That is the feature I sought to stress and I was a little disappointed with the Minister—she went through merit, equal opportunities, probity, openness and transparency, and proportionality, but did not include independent scrutiny. I think that that is the most important thing of all, which is why I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 16) shall be agreed to?
	Their Lordships divided: Contents, 98; Not-Contents, 124.

Resolved in the negative, and amendment disagreed to accordingly.

Lord Evans of Temple Guiting: My Lords, before I adjourn the House for dinner, in view of our discussion just before the vote on the last amendment, I would like to read a couple of lines from the Companion so that noble Lords will understand the rules on Report. It states:
	"Only the mover of an amendment or the Lord in charge of the bill speaks after the minister on report except for short questions of elucidation".
	I have done my duty.
	I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that Report begin again not before 8.30 pm.

Moved accordingly, and, on Question, Motion agreed to.

Zimbabwe

Lord Blaker: rose to ask Her Majesty's Government what policies they are adopting regarding the situation in Zimbabwe.
	My Lords, I pay tribute to all noble Lords who have come here to make a two-minute speech. Those who are going to speak should not thank me or congratulate me on this debate because that just takes time.
	A few weeks ago we had reason to be optimistic about Zimbabwe. The two leading figures in ZANU-PF under Mugabe appeared to be agreed, in spite of their mutual rivalry, on denying Mugabe the opportunity of extending his presidency for six or more years. The International Crisis Group believed that a realistic chance had at last begun to appear to resolve the Zimbabwe crisis. That prospect has disappeared in blood and brutality and through the feebleness of SADC.
	We have seen the full horror of Mugabe's regime reflected in the battered faces of leaders of the opposition taking part in a peaceful prayer meeting. We have seen young men, no doubt trained in violence in the green bomber brigades, being issued with police uniforms to give them a semblance of authority to conduct violence against the innocent.
	The courage of those at that meeting, completely unarmed, was remarkable. Random assaults by the police have been reported to continue for days. A woman member of the British Embassy, who had been visiting the injured in hospital, was told in the government-owned newspaper:
	"It will be a pity for her family to welcome her at Heathrow Airport in a body bag".
	So alarmed were the SADC governments by the violence, that a summit meeting was called in Dar es Salaam. These are some of the extracts from the communiqué of the meeting.
	"The... Summit recalled that free fair and democratic Presidential elections were held in 2002 in Zimbabwe... The ... Summit appealed for the lifting of all forms of sanctions against Zimbabwe... The... Summit mandated Thabo Mbeki to come to facilitate dialogue between the Opposition and the Government and report back on the progress".
	Not surprisingly after that, Mugabe returned home in triumph. He proceeded to get agreement from ZANU-PF to increase the number of Members of Parliament from 150 to 210, with the bulk of the new constituencies in the rural areas where ZANU-PF is strong. Voting in the senate will be altered to the advantage of ZANU-PF. The constitution will be changed so that when an elected president dies or retires his successor will be chosen by Parliament and not by direct elections as at present.
	South Africa is now in the UN Security Council, and was last month its president. Its record in that body is interesting. On a mild motion criticising Myanmar, alias Burma, calling for national reconciliation and release of political prisoners, and other measures not even including sanctions, South Africa cast a no vote—it voted against that mild resolution. It also used its position in the presidency to block debate on violent repression of the opposition in Zimbabwe. Archbishop Tutu, who with Vaclav Havel had taken part in reporting on conditions in Burma, said:
	"I am deeply disappointed by our vote. It is a betrayal of our noble past".
	He is, as we know, a Nobel Prize winner. He has also criticised the Government of South Africa on their stand in the Security Council on Zimbabwe.
	President Mbeki, as we all know, has had extraordinary views, which defied modern medical knowledge, on the question of HIV and AIDS. He is clearly capable of major misjudgments or self-deception and his record casts grave doubt on his suitability, to use the words of the Dar es Salaam communiqué, to facilitate dialogue between the opposition and the Government of Zimbabwe. It is not surprising that his so-called quiet diplomacy between ZANU-PF and the opposition in Zimbabwe was not successful. It looked more like quiet protection for Mugabe.
	An interesting new light has been cast on the role of President Mbeki in relation to Zimbabwe by the remarks of Moeletsi Mbeki in a BBC Radio 4 "Today" programme a couple of weeks ago. He is a South African business man, brother of the president, who worked as a journalist in Zimbabwe. Asked by Edward Stourton what we should make of what happened at the SADC meeting in Dar es Salaam he replied as follows:
	"There is something which is overlooked. Mugabe has the same adversaries that many African Governments in Southern Africa have. These are the trade unions and the non-governmental organisations who are pressing for policies that favour the majority of the people whereas the Governments are following policies in general that favour the elite. It is never going to happen for African Governments to pressurise Mugabe but a large number of the African people are opposed to Mugabe".
	Those words cast the most illuminating light on President Mbeki's behaviour that I can remember. They do the same for the behaviour of SADC heads of Government in Dar es Salaam. I doubt that we should put much hope on success for President Mbeki in the role given to him by the SADC summit.
	What should be our policy towards Zimbabwe now, in a situation which is worse than any other since Mugabe set out on his regime of terror seven years ago? There is one course that could succeed that has not been followed—that is, firm action by the G8. The Prime Minister, in a speech on 2 October 2001, called for,
	"a partnership for Africa between the developed and the developing world based around a new African initiative. It's there to be done if we find the will. On our side provide more aid untied to trade, write off debt, help with good governance and infrastructure"—
	and other suggestions. He continued by saying that,
	"it is a partnership. On the African side: true democracy, no more excuses for dictatorship, abuses of human rights, no tolerance of bad governments from the endemic corruption of some states to the activities of Mr Mugabe's henchmen in Zimbabwe... the state of Africa is a scar on the conscience of the world".
	I say Zimbabwe is a scar on the conscience of Africa. Some countries in Africa are not living up to their part in the partnership. Early in this decade, President Mbeki seemed to cast doubt on the validity of the partnership, declaring that the problems of Africa should be left to Africans to resolve. But the present situation in Zimbabwe is so grave that it calls for a new and bold approach.
	Almost all the African countries have joined the African Union, which replaced the OAU, which was wound up in failure a few years ago. The AU treaty committed its members to observe good governance, human rights and the rule of law and to use peer pressure to achieve them. The treaty for the SADC contained very similar obligations; Mugabe is in major breach of both treaties.
	In two months' time the next meeting of the G8 will take place in Germany under the chairmanship of Chancellor Merkel, who has been displaying considerable skill and determination. I have suggested in each of the past two years that the annual G8 meeting, which is attended regularly by President Mbeki, who will also attend the next one, and other world leaders, should be used by the G8 to persuade him and any other African leaders who may be present that the Zimbabwe problem must be resolved. The eight most economically powerful countries in the world should be able to persuade the countries of southern Africa, through President Mbeki, of the great importance of living up to their solemn obligations in the AU and SADC, as well as NePAD. It would be very much to the advantage of both sides in the partnership.
	Mugabe is turning Zimbabwe into a failed state. It is time that we made it clear to the members of SADC, the AU and NePAD that the time has come to stop the rot.

Lord Acton: My Lords, South Africa speaks with a voice that thunders throughout southern Africa, yet President Mbeki will not speak out against President Mugabe. The thunder is silent. The finest words from South Africa on the silence over President Mugabe's conduct came on 16 March from Archbishop Tutu, who said:
	"We Africans should hang our heads in shame".
	On 26 March in another place, the Minister for Trade, Mr Ian McCartney, said that the most reverend Primate the Archbishop of York and others had increasingly been,
	"demanding of South Africa and cajoling South Africa to take a more proactive role. That is exactly what has been happening in the past few days. That is why we must maintain and develop a relationship. That is why the Prime Minister has written to President Mbeki".—[Official Report, Commons, 26/3/07; col. 1174.]
	I should be grateful if my noble friend the Minister would confirm that British policy is to request of President Mbeki that South Africa takes a more proactive role and in particular that British policy is to exert pressure on President Mbeki to use that voice of thunder. I trust that that is indeed the case, for if it is not people in Britain will increasingly adopt the attitude of Archbishop Tutu and hang their heads in shame.

The Lord Bishop of Southwark: My Lords, your Lordships may know that my diocese is twinned with three of the dioceses in Zimbabwe and over the years there have been frequent visits of church leaders and others in both directions. In fact, there is a party of two dozen people led by the Bishop of Croydon visiting at present. Through these visits and communications we are very well aware of the contribution that local churches in Zimbabwe are making to ease the lot of their neighbours and the extremely delicate and sometimes dangerous situation in which they find themselves. It has not always been easy to judge how the church in England can best support them because any criticism of the Zimbabwean Government coming from us is swiftly denounced as the predictable opposition of an ex-colonialist church, and Anglicans in Zimbabwe can then be disregarded as being the lackeys of colonialism. In spite of this, several of the bishops, particularly the Roman Catholic bishops, have been courageous in seeking to resist the excesses of oppression which they and their people experience. I say "several" because Anglicans here are also embarrassed by the part being played by the Bishop of Harare, Dr Nolbert Kunonga, who is very close to the Mugabe regime.
	All this is happening at a time when SADC decided to commission a team to develop a paper on possible solutions to the crisis. It would be good if the Minister could tell us what is the strategy of Her Majesty's Government and the EU in working with this. It would also be good to know how the British Government will continue to support food aid and the World Food Programme without seeming to be propping up the regime.
	It is difficult not to be pessimistic about the situation but the network of community care represented by local churches in Zimbabwe will still be there when the Mugabe regime has disappeared and it will be part of the basis for nation building. We in the church will do all we can to support them.

Lord Kinnock: My Lords, Robert Mugabe's cruel, corrupt misrule has cumulatively caused the economic and social decomposition of his country. The beginning of the answer to the tragedy of Zimbabwe must be his departure, but that answer can be applied only by the leaders of southern Africa. Realistically, no other group has the political status, security and strength speedily to propel the changes that are vital.
	Initiatives from outside Africa will be dishonestly exploited by Mugabe as "neo-imperialism". Inside Zimbabwe, the MDC—correctly and courageously—will not resort to violence. Inside ZANU-PF, the certainty of vicious reprisal still subdues those who now despise Mugabe's reign of ruin.
	I understand, of course, why some SADC leaders have felt a debt of solidarity to Robert Mugabe. But he has long treated their "mediation mandates" to President Mbeki—five since 2000—with a contempt that corrodes their credibility. More tangibly, the Mugabe-made catastrophe generates mass emigration which adds hugely to the already severe pressures on neighbouring countries.
	Mugabe is not therefore the historic moral creditor of southern Africa's leaders; he is now the direct cause of greatly worsened burdens on their economies. That will continue until they tell him forcefully and urgently that the only help now available from southern Africa is to facilitate his exile. Only when that happens will transition to meaningful democracy and reconstruction begin. The ultimatum should be public. Mugabe should face retribution. But if pressure has to be private in order to achieve very rapid results, I will rationalise that as a price worth paying.
	For the sake of Zimbabweans and their own people and reputations, I urge the leaders of southern Africa now to exert that pressure relentlessly. The reliberation of Zimbabwe depends upon it.

Lord Waddington: My Lords, so great is the suffering within Zimbabwe that the hardship being suffered here in Britain by people who served the Crown in southern Rhodesia before UDI and in many cases continued to serve thereafter and have been robbed of their public service pensions seems very small in comparison. But they are victims nevertheless: victims of the catastrophe which has overtaken Zimbabwe for whom the British Government have a clear responsibility; victims who, unlike many other victims of the catastrophe, the British Government really can help. I declare an interest as president of the Overseas Service Pensioners' Association, which is doing its best to help these people, about 600 of them, including widows, who are dependent on social security and charity.
	After UDI the British Government reaffirmed southern Rhodesia's status as a British colony by appointing a new governor. They then negotiated a constitution for an independent Zimbabwe which, according to the then Minister, provided full safeguards for public service pensions and their remittability. Unfortunately, it soon became clear that that assurance was not worth the paper it was written on. During the 1980s and 1990s the value of the pensions remitted by the Government of Zimbabwe to former Crown servants steadily declined. Then in February 2003 payments ceased entirely.
	Her Majesty's Government did not then, as one might have expected, step in to help these former servants of the Crown. They said that although southern Rhodesia was a colony, its civil servants were not appointed by the Secretary of State but by the colonial Government. They failed to explain why it should make the slightest difference whether a person was appointed by the Secretary of State or by the colonial Government under the authority given them by the then Secretary of State, because that must have been the case it being a colony.
	Ministers have often claimed that because of our colonial past there is not much we as a country can do to help Mugabe's victims, but there are some people who were part of that colonial past who the Government can help—British people who went out to a British colony as servants of the Crown and have suffered loss following the decision by Britain to hand over responsibility for their pensions to Zimbabwe.
	Earlier Governments also claimed that they were under no legal duty to guarantee payment of the pensions, but the point is that in those days the pensions were still being paid, now they are not. Whatever the legal position, the Government's moral duty is plain.

Baroness Williams of Crosby: My Lords, I echo what the right reverend Prelate said. I quote from the remarkable statement of the Roman Catholic bishops in Zimbabwe on 30 March:
	"The people of Zimbabwe are suffering. Our country is in deep crisis ... It almost appears as though someone sat down with the Declaration of Human Rights and deliberately scrubbed out each one in turn".
	That was a brave thing to say and all those men risked their lives saying it. We must recognise that some of the most trenchant criticism of the awful Zimbabwe regime comes from African individuals showing immense commitment and courage in making clear their opposition to what that regime is doing.
	What can we do? A number of noble Lords referred to things that we might do, including the noble Lord, Lord Waddington. First, we should check up—as we have not done—on the extent to which the sanctions, which we have supported, are actually being carried out. My information is that on investment, and to some extent on the education of the elite of Zimbabwe, our position is, to say the least, not exactly wholly of one piece. Her Majesty's Government need to look at that as well as rightly calling on South Africa to take much stronger steps.
	On the 10,000 to 12,000 Zimbabwean detainees who are currently in this country, in evidence to the human rights committee, the Immigration Minister Mr Liam Byrne said that enforced return to Zimbabwe was safe. I wonder whether that could possibly be true, given that every single person returned to Zimbabwe is now denounced as a British spy and is almost invariably, if not at worst tortured, harassed, pursued and treated as an outcast.
	Very shortly the decision made in the AA case that Zimbabweans would not be deported for the time being will come up again because the matter has been referred to the Asylum and Immigration Tribunal. There appears to be a deep gulf between the Home Office and the Foreign Office. I plead with the Government and the Minister to consider whether we might not do something that was imaginatively done by the German Government back in 1991-92, which was to offer a temporary right to remain until such time as the Bosnian Government recovered their democratic and human rights recognition. A similar action in the case of Zimbabwe would be vastly in the interests of the United Kingdom because we would breed a whole regiment and generation of people determined to go back when the time came to rebuild Zimbabwe and make out of it a beacon of democracy.

Lord Luce: My Lords, it is common ground that Zimbabwe is fast proceeding towards becoming a failed state. I was doing the same job as the noble Lord, Lord Triesman, 27 to 28 years ago when, as Minister for African Affairs under the leadership of the noble Lord, Lord Carrington, we negotiated in 1979 independence, a new constitution and a trust fund for land resettlement. It gave an opportunity to end a war that had cost 25,000 lives, and for that country to take its own decisions on whether to build or destroy. The tragic thing is that Mr Mugabe has destroyed rather than built. He has built his own power and wealth at the expense of his people, for whom he has shown the utmost contempt. All that is in sharp contrast to South Africa, where Mandela became president under a democratic system and yielded power under a democratic system; or indeed in Ghana, where President Kufuor, president of the African Union, has twice come to power democratically, following the late President Rawlings.
	I have only one point to make. What can we do after Mugabe has gone? What contingency planning are we preparing? I will make one proposition. The initiative should come from the Commonwealth. After all, it was in Harare where the declaration was signed by all Commonwealth leaders in the early 1990s that they would commit themselves to democracy, to a plural society, to human rights, to the rule of law and to freedom of expression. The Commonwealth suspended Zimbabwe in 2003, and the Commonwealth should prepare to offer to the Zimbabweans, after Mugabe is gone, subject to the right conditions, the mobilisation of Asian, European, African and Caribbean expertise to help to give the Zimbabweans the tools to enable them to rebuild their country.

Lord Anderson of Swansea: My Lords, two questions in two minutes. First, could the United Kingdom have done more to bring pressure on the Mugabe regime as it systematically ruined a once prosperous country? What a contrast with the role of President Mandela, south of Limpopo. I have visited Zimbabwe many times and spoken to key players there and in New York, and I am convinced that a more robust approach by the UK would not have helped, and would indeed have played into the hands of Mugabe's propaganda machine.
	In addition, and alas, African solidarity has prevented that Commonwealth initiative that the noble Lord, Lord Luce, has mentioned, and South Africa refuses to be positively engaged. There is no chance of putting Zimbabwe on the agenda of the UN Security Council. Now, pace the African Union summit, there are at least some signs that the southern African leadership is beginning to recognise, at least in words, the damage to its own interests, and it may well be that Zimbabwe is now entering the end game. In what way should we in the UK and our EU partners be involved?
	Obviously, we continue to encourage our friends in southern Africa to be more bold and show the damage to their own interests. We build on the remaining strengths of democracy in Zimbabwe from the independent trade unions, non-governmental organisations, particularly the Roman Catholic Church, a credible infrastructure and of course the lingering experience of democracy. We should accept that when change comes it will not be a democratic state immediately but will arise from a palace revolution from the inner circle of Mugabe. Are we therefore ready, both in the UK and the EU, even in those circumstances, to launch an immediate programme of reconstruction, on the condition that the new Government recognise that they are only provisional and honour their pledges? In short, are we and our partners ready to see beyond any such interim Government to prepare for a Government who can restore democracy, revive a disastrous economy and relieve the suffering of their people? So much damage has been done that rehabilitation will indeed take a long time.

Baroness Park of Monmouth: My Lords, the noble Lord, Lord Luce, and I must meet, because I had intended to speak about a possible Commonwealth initiative, about which I am in touch with the Secretariat. I prefer to denounce the appalling treatment being meted out to members of civil society and the MDC, with 28 cases so far in the past three weeks, among them two Members of Parliament. That needs to go on the record.
	Violent beatings and torture have left innocent men and women blinded, deaf and unable to talk, quite apart from many broken limbs. They are told variously: "We are going to take you one by one. By 2008, there will be no MDC. We'll kill you all so that the party does not succeed"; "If we hear of you at the MDC offices or at a rally, we shall kill you. You will just disappear"; "Go home and you will find your wife and children are not there". As well as being brutally beaten, prisoners are denied food, water and medicines and are said to have resisted arrest.
	The list of victims includes a respected black cameraman, abducted and beaten to death, and two MPs. The CIO claims that it is looking for petrol bombs, but, it says: "This is about death. If you do not admit to one of three offences, you will die. Leave Zimbabwe within seven days or you disappear".
	All the cases, and this is only from a list covering the past few weeks, have had this in common: they were abducted in the middle of the night. Most have been brutally beaten and tortured; all have been denied access to their lawyers, visits by friends and family, food, access to vital medication as well as medical care and worst of all their constitutional and legal rights to be released on the orders of the Attorney-General. The rule of law has broken down. I hope that the names of all the torturers, many of whom are known, will be posted daily on the internet.
	I have one question: many of those being tortured are students and young people. How many children of ZANU-PF Ministers are peacefully studying in this country, some claiming to have MDC sympathies?

Baroness D'Souza: My Lords, in most countries, successful political transition, meaning one that does not descend into violent interethnic conflict, usually involves civil society organisations such as churches, trade unions and NGOs. Political upheaval creates a vacuum at the top, which is too often filled by nationalists aiming at overall power rather than any genuine form of democracy. Zimbabwe has undergone severe trauma and disruption to its civil society. The task now is to build those organisations that could play a crucial part in the political changes to come, and at the same time to work ceaselessly to build a critical mass of opinion condemning what is happening in Zimbabwe.
	An almost total lack of planning for the post-Mugabe phase is more than worrying. Despite the obvious needs, funding for civil society programmes has decreased in the past few years. For example, the USAID budget for civil society organisations dropped from $4.3 million in 2004 to $2.7 million in 2005. Yet now is the time to expand the democratic space by means of funding and technical support.
	As an example, I will sketch the kind of work undertaken by one such organisation, Women of Zimbabwe Arise, or WOZA, which means "come forward" in Ndebele. WOZA was set up in 2003 to provide women with a united voice on issues affecting them and to create communities at the most local levels of women prepared to work politically. It now has a membership of 35,000, and more than 2,500 of its members have been imprisoned and/or tortured. This courageous organisation has, on the basis of widespread consultation, drawn up a people's charter which spells out the basic requirements for peace and democracy and fulfils the most crucial lesson in development; that the people themselves must shape the future of Zimbabwe.
	The Commonwealth proved resolute in dealing, for example, with apartheid South Africa and with Pakistan once it had been suspended from the Commonwealth. Why can it not now take a lead through, for example, the Commonwealth ministerial action group or its various arms, such as the Commonwealth lawyers or press associations? The Commonwealth Heads of Government meeting in Uganda this autumn is an opportunity not to be missed.
	A combination of proper and even increased funding and technical support for those organisations working to build democratic processes at village level, with a co-ordinated approach from the Commonwealth, would be persuasive in creating a critical mass. I ask the Minister to confirm that both those avenues will be explored in the immediate future.

The Earl of Caithness: My Lords, rather than speaking for two minutes, it might be better to have two minutes' silence for that once lovely country and for the bravery of the opposition. How much longer that will continue, as my noble friend Lady Park said, none of us can judge.
	President Mbeki has not been a neutral referee at all. He has been an active collaborator of the Zimbabwean Government. SADC has failed Zimbabwe, Africa has failed Zimbabwe, the UN has failed Zimbabwe and the British Government have failed Zimbabwe because NePAD, which was supposed to help, has been, as we predicted not so long ago in 2003, a total waste of paper. Poor Zimbabwe has been dealt the lowest card in the pack and no one seems to be able to help the country.
	What plans have the Government to strengthen SADC—to make it an organisation that can operate efficiently and prove to be worthy of its constitution? How can it be made more robust? In many ways, the situation in Zimbabwe is the same that it was in 1979, except for one thing; that is, there is now no guarantee of free and fair elections—if there are to be any elections, because there may not be an opposition next year. What are the Government doing with other countries to make certain that there will be elections next year and that they will be free and fair? Without free and fair elections, there is no point in even considering a future for Zimbabwe.
	My third question to the Minister is: what initiatives have been taken to include the former leaders of African countries who signed the Bamako declaration in 2005? The one group that President Mugabe might listen to are the former leaders who might persuade him that by stepping down he might still be a hero in his country; that would give him a peg to leave on. He obviously will not listen to anyone in power at the moment.

Lord St John of Bletso: My Lords there have been so many false dawns in Zimbabwe. I have been a lone voice in your Lordships' House, believing that sanity would prevail and that there would be a Government of national unity—and how wrong I have been. While the noble Earl, Lord Caithness, and others are absolutely right to ask what the South African Government have been doing to put pressure on Robert Mugabe to resolve the ever worsening crisis in his country, your Lordships should be aware that the South African Government have, behind the scenes in the past five years, negotiated no fewer than two deals which would transition the country to a Government of national unity, but on both occasions Mugabe has reneged on those deals—to a large degree, perhaps, because of the fact that Charles Taylor was indicted for war crimes and the belief that many of Mugabe's cohorts would face a similar destiny.
	The South African Government are now lending support to a troika of Tanzania, Lesotho and Namibia to find a solution. Furthermore, as several noble Lords have mentioned, since the SADC meeting 10 days ago, Mbeki has been formally mandated to be the official mediator in an attempt to ensure free and fair elections in Zimbabwe next year. That of course will be a monumental task, especially as much of the defective security legislation will need to be repealed and an independent electoral commission appointed.
	Your Lordships should be aware that there is no love lost between Mbeki and Mugabe. Time restricts me from elaborating why the South African Government have not been more outspoken in the past. I still believe we are in the end game in Zimbabwe. With the ever worsening economic meltdown in Zimbabwe, the economy is the real opposition—and against that Mugabe has no response. I believe that the economy will determine what happens politically.
	I have always believed that there should be African solutions for African problems. Increasingly, African Heads of State are now, thankfully, speaking out and deriding the Zimbabwe crisis as being embarrassing for Africa. I also believe that between now and the election next year there is a strong possibility of an internal challenge within ZANU-PF against Mugabe's leadership.
	In conclusion, it is not a matter of if there will be change, but when. What measures are likely to be taken by Her Majesty's Government when that time comes to help rebuild what was once the bread-basket of Africa?

Viscount Goschen: My Lords, I intend to make only three points. The first is to support the action advocated by my noble friend Lord Blaker and many others for the Government to apply real pressure in every forum available—bilaterally, through the auspices of the UN, the G8, the EU and the Commonwealth—to urge South Africa and, in particular, President Mbeki, to face up to their responsibilities to make change happen in Zimbabwe. The situation is a true and manmade disaster—not only in the destruction of a once wonderful country, but in the collateral damage to the reputation and credibility of all other states in the region.
	My second point is that we must be careful in guarding against the assumption that the removal of Mugabe alone, per se, will solve the situation at a stroke. That will be hugely important, but we are looking for fundamental and enduring political change, not just a rebranding of a dictatorial group of ZANU-PF chiefs.
	My third point, also made by the noble Lord, Lord Luce, is that there is a positive message that we in the UK can send to the people and the political administration in Zimbabwe. Zimbabwe is not a hopeless case. With a change to a new and benevolent Administration that will come at some stage, the country could and will recover quickly with the right help from the West. Her Majesty's Government should be sending the message that we are standing by to do everything that we can to make that happen—to rebuild the country when that time comes. Zimbabwe has been a great country and I am quite sure that, with the right political leadership, it will be again—and quickly.

The Earl of Sandwich: My Lords, all the indicators point to a degree of deterioration unknown even in the poorest African countries. This is especially dangerous for a developed country that cannot easily rebuild its institutions. There is also an endemic agricultural crisis. We can hardly imagine the feelings of ordinary people, especially those in Matabeleland outside the ZANU-PF patronage who have been trodden down for such a long time. With the police now routinely arresting and humiliating opponents and disregarding court orders, the law is not an adequate protection.
	Like my noble friend, I believe that President Mbeki will in the end recognise that Mr Mugabe is an obstruction in the way of political stability and that Africa cannot carry him indefinitely. President Mbeki was surely at least behind the SADC initiative and has offered to hold direct talks with the MDC and ZANU-PF.
	None of us is in doubt of the evil of the regime. We have to go on speaking out about it. At the same time, it is important for us in Britain to appreciate the depth of the southern African apartheid legacy and we must be careful of the language of crisis. It is easy to say that when people are dying any cautious approach is appeasement. Like my noble friends, I expect that the end will come not from clever diplomacy, which has failed, but from inside—yet I know that that will be at the cost of more violence and bloodshed.
	Meanwhile, we must not be diverted from the other important issues. In 2006, the number of rural food insecure people totalled 1.4 million, and this year it could return to the acute level of 2002—around 4 million. How will Her Majesty's Government continue to support the food aid programme? Why has DfID stopped its protracted relief programme for 12 months at such a crucial stage, and how will it support the most vulnerable after this July? Are we losing the battle against HIV/AIDS in Zimbabwe?
	Finally, will the Minister comment on the possible stalemate which is coming up at the EU-ACP summit in Lisbon, to which Mr Mugabe has been invited?

Lord Best: My Lords, I shall make two brief points. First, I urge support for the work of the Zimbabwe Phoenix Trust, created by the noble Baroness, Lady Park of Monmouth, to provide training, skills and motivation for professionals now in the UK as refugees or settled residents, so that people with expertise are ready to return to that country when the task of rebuilding it begins.
	Secondly, in relation to the notorious Operation Murambatsvina, in which the Government violently bulldozed people from their shacks and stalls in the areas of political opposition to Mugabe, I commend the work of the UK's Homeless International. Against all the odds, with support from DfID, the EU and Comic Relief, Homeless International is empowering local communities and demonstrating what can be achieved through in situ upgrading of slums, land sharing and sanitation initiatives if only there is some political stability.
	I ask Her Majesty's Government to make strong representations to the new Secretary-General of the United Nations suggesting that Anna Tibaijuka, the under-secretary of the UN, who made the original highly critical report on the mass evictions, should now be sent as his special envoy again to report on what has happened following this catastrophe of enforced homelessness for between 700,000 and 1 million of the most bitterly poor people in Zimbabwe.

Lord Avebury: My Lords, in this end game, as it was referred to by the noble Lord, Lord St John, the 12 million people of Zimbabwe are sinking further into the abyss of destitution, failing public services, falling life expectancy and mass emigration. I hope that the Government will listen to the pleas made by my noble friend on behalf of the few exiles who manage to get to the United Kingdom.
	The noble Lord, Lord Blaker, referred to the SADC extraordinary summit, which ignored the destruction of homes and livelihoods referred to by the noble Lord, Lord Best, and the crushing of the free media, the expulsion of journalists, the hyperinflation caused by mismanagement, the corruption and the money-wasting on Mugabe's birthday party and luxury cars for ZANU-PF cronies. SADC wants a dialogue between the wolf and the lamb, between the torturers and their victims—ZANU-PF and the opposition—but, first, it must get the regime to level the playing field, restoring free speech and peaceful assembly, dropping the spurious charges against opposition activists and complying with the recommendations of international bodies such as the UN special envoy and the Inter-Parliamentary Union.
	Speaking of the IPU, at its meeting on 29 April it is expected to add three new complaints to the two dozen already on its books. Tendai Biti, secretary-general of the MDC, and Nelson Chamisa were arrested on 18 March and severely beaten. Mr Chamisa suffered a fractured skull and a detached retina in custody. Paul Madzore, who was arrested on 28 March, was tortured, denied medical attention and refused bail. President Mbeki and SADC may do no harm by deluding themselves about the effects of EU sanctions and the UK's attitude to land reform, but they cannot ignore Mugabe's crimes of violence against his own people if there is to be anyone left to engage in the dialogue.

Lord Howell of Guildford: My Lords, it takes a lot of time to prepare a two-minute speech, and we have heard an enormous amount of wisdom packed into an amazingly short and brisk debate. This is no place for an opposition wind-up speech in the usual sense and I simply ask the following questions.
	First, where, in the Government's view, do we now turn? Can the Minister give us any glimmers of hope? Clearly, things are changing. There are growing splits within ZANU-PF. How clear is it to this Government that the senior party leaders of ZANU-PF are really fed up with the ageing tyrant and his policies of terror and their effects, or is he going to outmanoeuvre them yet again?
	Secondly, at least SADC, the Southern African Development Community, seems in a way to have woken up with the appointment of Mbeki to mediate between the parties. Perhaps, as noble Lords have indicated, this will lead nowhere as usual, but at least Zimbabwe is now seen as a SADC issue—and not before time. Is this the opportunity for real pressures of a new kind to be developed? Can the Minister give us some thoughts on that?
	Thirdly—I note that this is more of a hope than a fact—the whole Commonwealth, which Zimbabwe left in 2003, has a stronger role and voice to offer in giving backbone and resolve to Zimbabwe's neighbours before that country drags them all down. Like the noble Lord, Lord Luce, and others, I can never understand—nor, incidentally, can our overseas partners—why we here do not play the Commonwealth card more vigorously. We have one of the richest and most powerful transcontinental networks in the world and we should make much more use of it.
	Finally, there are the international institutions—the EU, the UN and perhaps the G8, as the noble Lord, Lord Blaker, suggested in initiating this excellent short debate. The EU has sanctions on travel by Zimbabwean ruling personnel, as we know, but frankly these sanctions keep on being breached. They were breached yet again in Belgium the other day. They should be extended to whole families and they should be much tougher. We should like to hear what propositions the Government have on that front. As for the UN Security Council, I know that HMG try to keep raising the issue, but they should go on trying and trying again to raise a matter that may not yet be one of international peace and security, but which could become so in this network world if the whole of southern Africa is infected, as it probably will be.
	It is the people of Zimbabwe—there are still many brave ones left—in whose hands the escape from this appalling downward spiral lies. That nation must save itself. We here should not be deterred by propaganda or lies from acting at every point we can. We would be failing in our duty if we did not stand ready to help and support to our utmost the people of Zimbabwe in their deep torment and suffering as they face the collapse of their nation.

Lord Triesman: My Lords I join all those who have thanked the noble Lord, Lord Blaker, for having introduced another important debate on Zimbabwe. My thanks to all noble Lords who have undertaken an extraordinary task in distilling so many important points into so few minutes. I thank all of them for that and shall do my best to address the crucial issues that have been raised.
	The debate, as we know, coincides with a particularly brutal period—the past month being probably the most brutal of the lot—in Zimbabwe. As the noble Baroness, Lady Park, said, there are plain examples of that brutality. Mugabe's security apparatus has embarked on an odious, country-wide campaign of violence and intimidation in a determined effort to offset its decreasing support in the country. Human rights defenders, independent journalists and opposition members have in the past few weeks all faced harassment, torture and, in some cases, death at the hands of Mugabe's security apparatus. Their only crime has been to dare to work and campaign for a better future for their country. I am sure that everybody in this House will join me in applauding all of those who have shown such courage in the face of such hostility.
	I also deplore the threats that have been made to one of our own diplomats, which were referred to in the debate. He has been conducting normal diplomatic duties. We, of course, have the Zimbabwean ambassador on that matter, and on the matter of the parliamentarians who were savagely beaten on their way to Brussels. We have raised all those crimes of violence.
	I look at the realities as other noble Lords have done. We see a wrecked economy—there is no other way of describing it. It is not alarmist or extravagant to make the point that this economy has imploded. As somebody who has spent a good deal of his professional career as an economist, I make the point that no economy in the world that I know of has ever recovered of its own volition from the depth of crisis that this economy now experiences. It has been plundered.
	The official rate of inflation went through 2,200 per cent at the end of last week, and we all know that it is probably double that. It was a land of plenty, which has become a land of destitution. My noble friend Lord Kinnock is right to say that it has become a place from which there is mass emigration to neighbouring countries. I say to the noble Lord, Lord Howell, that peace and security are often fundamentally disturbed by large movements of people across international borders with no food and no capacity to sustain themselves or their families. That may well be exactly the kind of thing that the United Nations should have focused on and must do so now, given its past failure to focus.
	I do not know whether I have any encouraging words for the noble Lord, Lord Waddington. I know of and have great respect for the work done by the Overseas Service Pensioners Association, but I do not think that any Government in the recent past have been able in any simple way to take on the debts that have arisen out of pensions and the collapse of regimes.
	How different all this could have been if the agreement described by the noble Lord, Lord Luce, had been sustained. I shall not go through the statistics—they are so well known to your Lordships' House—on the nature of the collapse in Zimbabwe. It would take time, and would not be particularly helpful because nobody denies the truth about the economic and humanitarian enormity of the collapse.
	I have no doubt that most Zimbabweans understand the problems they face and the solutions required. Many, even in ZANU-PF, know the party has to change or lose all credibility. The noble Lord, Lord Howell, asked whether we see splits that may be of some benefit. I know that some leading members of that regime have been rather slower than they have in the past to climb on the Mugabe bandwagon. We must pay careful attention to that, not in a way which labels them and makes it impossible for them to operate, but one recognising that there are fundamental changes. Mugabe, of course, opposes all reform and continuously blames others for the crisis he has created, even to the extent of threatening international diplomats based in Harare, as I have said.
	The United Kingdom shares the region's desire to see Zimbabweans recover. There is no UK agenda other than the decent recovery of that country, but it is increasingly obvious to all that the present policies pursued by that Government are a barrier of the most profound kind on Zimbabwe's road to recovery. Mugabe's policies must change, or someone who can introduce new policies must be there, for any hope of a better future for ordinary Zimbabweans. The noble Earl, Lord Caithness, asked what we were doing. I shall try to answer that, although he will appreciate that trying to "ensure", as he put it, free and fair elections is something we can influence, but not achieve directly of our own volition. We can certainly try.
	As my right honourable friend the Foreign Secretary said in another place, there is considerable concern across the international community about the situation I have described. The United Kingdom's concern is shared by the European Union and many in the wider international community, particularly in Africa. SADC has shown for the first time that it is willing to discuss a matter which it has steadfastly refused to discuss on all previous occasions. So we must work closely with all of these bodies to sustain international pressure on the Mugabe Government. There are issues where we can exert pressure but have not so far done so. The noble Baroness, Lady Park, asked me how many children of the regime are in university. I tell the noble Baroness candidly that I do not know, but I am determined to find out.
	We have maintained a firm EU policy, including the use of targeted measures. They have put pressure on the leaders of the regime and underline the EU's position. We have recently achieved the roll-forward of those pressures, although not everybody in Europe was entirely confident that that was the right thing to do. They were content with our pressure, but I believe that rolling forward was absolutely right and we were successful in doing so. We must try to extend those measures. They are inadequate. They certainly punish Mugabe and his ruling clique, but are not intended to punish the ordinary people of Zimbabwe. I am with the noble Baroness, Lady Williams, on this: we check, and must ensure that we continue to do so. We must be certain that the measures in place are as effective as intended.
	I say to the noble Earl, Lord Sandwich, that there has been no invitation to Mugabe for any EU conference held with Africa. My understanding is that nobody wishes to see the agreed sanctions stood down. We will continue to maintain the United Nations' focus on Zimbabwe as well. That has included a strong statement: a number of nations have associated themselves at the Human Rights Council on 29 March, expressing their deep concern at the situation in Zimbabwe and calling for special rapporteurs. Briefings at the UN Security Council, most recently on 29 March, about the deteriorating humanitarian situation were among the first and most serious discussions we have seen. Visits by envoys of the UN Secretary-General have been important. The role of the new Secretary-General and what he might say were asked about. On 12 March, he made a hard-hitting statement condemning the brutality used against peaceful protestors. We believe that he is willing to continue to exert that pressure, which I welcome.
	We will continue to support those working for peaceful democratic dialogue in Zimbabwe through the development of civil society programmes, which we support. Whatever the brutality visited on many of those people, I am with the right reverend Prelate the Bishop of Southwark in applauding the work of most religious groups and leaders. The Archbishop of Bulawayo has played an exemplary role and deserves not just our support but our heartfelt thanks.
	We are discussing with partners how the international community can best support the people of Zimbabwe, if and when there is a Government willing to turn from their present course and undertake serious and genuine political and economic reform. There are ways in which we could increase that pressure; they have come up in your Lordships' debate. The noble Lord, Lord Blaker, made the point that the G8 could do more. I assure him and the House that we are pushing for the matter to be on the agenda of the G8 and will continue to do so.
	The noble Lord, Lord Luce, and others, raised the role that the Commonwealth may play. I say to him and the noble Baroness, Lady D'Souza, that the Commonwealth in planning its conference is none too keen to reintroduce matters which took up almost the whole of the Commonwealth conference not too long ago. None the less, I see the strength of the argument and I am certainly prepared to argue it with the Commonwealth Secretariat.
	I agree entirely with the noble Lord, Lord Luce, that through the Commonwealth and the United Nations, the mobilisation of the tools of recovery is absolutely vital. I also share with the noble Viscount, Lord Goshen, the fundamental point that, if there is just another leader like Mugabe, pouring in additional resources, or trying to make these arrangements in circumstances which have not changed fundamentally, will not succeed. For those reasons, it is a matter of changing and securing different policies. My noble friend Lord Anderson was quite right to say that we have the advantage of being able to build on some existing strength; and we have to make sure we do.
	Africans are highly critical, as the noble Baroness, Lady Williams, said. Many individual Africans have been bravely outspoken. We pursue the issues repeatedly with the African organisations and states. We have urged at every stage a stronger African response. I have raised the Zimbabwean issue regularly with African Ministers—I think with every one I have ever met—as do my colleagues and officials. The noble Viscount, Lord Goshen, described it as "constant pressure". I say to my noble friend Lord Acton that this has been at the centre of my discussions with President Mbeki on all occasions, and—I say to the noble Earl, Lord Caithness—with other former leaders who might have influence, such as President Chisano. It has been a constant theme of the work we are doing.
	Following the recent escalation in violence, I am pleased to tell the House that, as many noble Lords will know, the Prime Minister has spoken to President Mbeki and President Kikwete of Tanzania. They made clear to him—this is their contribution to the conversation rather than the Prime Minister's—that the tragedy in Zimbabwe is now having a significant impact on them and their region. It is a direct impact; it is also a social impact. They see the situation also as liable to get worse rather than better.
	How do I assess this African intervention? My assessment in the past has been that it has been lacklustre. I think everybody knows my view on that. Quiet diplomacy has been urged on me. I believe that it has mostly been silent rather than quiet, but it is now audible and change is potentially unstoppable.
	In saying these things, of course we all must make sure that the failed attempts of the past—including President Mbeki's attempts, which the noble Lord, Lord St John of Bletso, mentioned—culminate in the present attempt being more successful. We must relentlessly exert pressure. But I echo the point made by my noble friend Lord Anderson. This must be done in a way, as Morgan Tsvangirai has made clear to us, that does not undermine the efforts of those in the country who will have to bear the greatest weight in the changes we are trying to achieve. There is absolutely no point in destroying the credentials of those who may very well emerge as the leaders we need in the new Zimbabwe, whatever accommodations have to be made in order to achieve that result. When a key opposition leader makes those points, we must listen very carefully to them and show proper respect.
	I can assure the noble Earl, Lord Sandwich, the right reverend Prelate the Bishop of Southwark and the noble Lord, Lord Best, that we are continuing work to provide aid. DfID has put £35 million into HIV/AIDS—a matter the noble Earl, Lord Sandwich, asked about—in an attempt to bring down its prevalence in that country; €200 million have been given by EU states; and the United Kingdom alone disbursed nearly €60 million in bilateral assistance. These are not the actions of nations that are not interested in the well-being of the people of Zimbabwe rather than the problems of its rulers.
	I say to the noble Lord, Lord Best, that Anna Tabijuka is unlikely to be welcome to return to make another report. I share his view, but we will have to find either someone like her or others who will continue to put on that pressure. I perfectly appreciate what he said about the homelessness organisations and I should like to know more about them.
	We intend to maintain that pressure and to work in difficult circumstances for the outcome that this House plainly wants. During his Easter message on 8 April, His Holiness the Pope made clear that Zimbabwe is in the grip of a crisis. It echoes the sentiments expressed throughout the international community condemning Mugabe's actions and supporting the brave Zimbabweans who have stood up against the regime.
	We must all—we in this country in particular—play our role, strongly supporting the steps towards a new democracy, towards fair elections, towards a different outcome for the people of Zimbabwe, without, as I have said, damaging the opposition. We will continue to ensure that the targeted measures of the EU are in place. We will make sure that those who violate human rights and subvert the rule of law are targeted. We support all those working for peaceful and democratic dialogue, including WUSA, if I may say so to the noble Baroness, Lady D'Souza. We will make sure that we are supporting them as well.
	In two days' time, the Government of Zimbabwe will hold celebrations for Zimbabwe's independence day—27 years after independence was declared. Independence from what? Are these people truly free? This House has expressed its view tonight and I hope that the House will feel that I have expressed the Government's view tonight: they cannot express their basic rights. They cannot choose the Government without a beating or worse from the police. That is unacceptable and we will play our part in turning round that grievous disaster.

Legal Services Bill [HL]

Consideration of amendments on Report resumed on Schedule 1.
	Amendments 17 to 22 agreed to.
	[Amendments Nos. 23 to 27 not moved.]

Baroness Ashton of Upholland: moved Amendment No. 28:
	Schedule 1 , page 116, line 40, leave out paragraph (b) and insert—
	"(b) give a copy of the Comptroller and Auditor General's report to the Lord Chancellor.
	(4A) In respect of each financial year, the Lord Chancellor must lay before Parliament a document consisting of—
	(a) a copy of the statement of accounts for that year, and (b) a copy of the Comptroller and Auditor General's report on that statement."
	On Question, amendment agreed to.
	Clause 3 [The Board's duty to promote the regulatory objectives etc]:

Lord Kingsland: moved Amendment No. 29:
	Clause 3 , page 2, line 25, at end insert—
	"( ) The Board must, so far as is reasonably practicable, act in partnership with the approved regulators."

Lord Kingsland: My Lords, as I am sure that the noble Baroness is well aware, the amendment is identical in terms to Amendment No. 31, tabled in Committee. It generated a short debate which is to be found in Hansard of 9 January 2007 at cols. 173 to 176. The background to the amendment—I do not intend to go into as much detail as I did in Committee—is the reaction of the Government to one of the recommendations of the Joint Committee. That recommendation essentially endorsed Sir David Clementi's recommendation that the manner of regulation for the Legal Services Board should be not direct but supervisory.
	In their response to the Joint Committee, the Government said:
	"The Government agrees that the intention of the Legal Services Board should be to work in partnership with the authorised regulators, leaving them with the responsibility for day to day regulation. The Legal Services Board should exercise its powers only where approved regulators are clearly failing".
	The amendment seeks to incorporate this notion into the Bill at this point. However, later amendments express precisely the same principle in rather different terms. I refer the Minister in particular to Amendment No. 174, which I anticipate we will come to at some stage on Wednesday afternoon.
	The theme will be familiar to the Minister: the existing professional bodies should be the front-line regulators, and the Legal Services Board should have a supervisory role, intervening only if it believes that a front-line regulator is failing in its duty in some way or another. The Minister seemed to endorse this approach at various points in Committee. However, she was reluctant to have it reflected in the Bill.
	With the greatest possible respect to her, this is not satisfactory. Once the Legal Services Board is up and running, it will inform itself on the basis of the words of the statute itself, and there will undoubtedly be a temptation for it to over-regulate. An amendment such as this would make it absolutely clear to the board what the limits of its regulatory powers are. The Government are on record as fully supporting the approach that is reflected in the amendment. Will the Minister therefore reflect what the Government's response is by agreeing to the amendment? I beg to move.

Lord Campbell of Alloway: My Lords, I support the amendment. There was considerable discussion of this subject in Committee. I had thought that it was more or less agreed that the principle at stake was that the board should have a supervisory role. However, the problem is that the complex structure of the Bill seems to demand that we must deal with the application of the principle in a piecemeal way. This is the first piece of that piecemeal way. I shall not say much more about it, other than that it does not seem possible to translate the pencil to cover the Bill, as I suggested in relation to Amendment No. 5, because it is of specific, not generic, application to the structure of the Bill. I merely mention that, but it is an essential matter on which there was considerable discussion in Committee.

Lord Maclennan of Rogart: My Lords, no part of this Bill better exemplifies the gap which has opened up between the assertions of Ministers about their purposes and the language of the legislation we are considering. It is fair to say that there is genuine anxiety on the part of front-line regulators about what is likely to develop. If steps are not taken by the Government to express in the Bill the purposes which have been eloquently expressed by the Minister, the Legal Services Board could become a behemoth. It will be required to supervise, but it has been given roles and powers which are ample and sufficient to enable it to grow far beyond the conception expressed by the Minister in debate. Without some clear curtailment of that possibility, it must be apprehended. The intentions of the Lord Chancellor and the purposes of Sir David Clementi will be deflected. It cannot be in the interests of the public that that should be so.
	Some parts of the regulation of legal services as they stand have not been seriously criticised; notably, the work of the Bar Council has been acknowledged to be efficient, effective and reasonably inexpensive. The defects addressed in this Bill are primarily those of the solicitors' professional response to complaints. No one on these Benches is unaware of the necessity of tackling this problem. We have been broadly at one with what the Government have said, but the gap is growing and the anxieties are increasing about what has been said and what is encompassed in the Bill.
	In Committee, my noble friend Lord Thomas of Gresford spoke in support of this amendment. It seemed almost inconceivable that some step would not be taken by the Government between Committee and Report to reflect what were perceived generally to be legitimate concerns, but that has not so far been forthcoming. Consequently, we must be left with the conclusion that there is to some extent a hidden agenda and that the Government look without concern at the probable consequence of failing to constrain the growth potential of the Legal Services Board.
	If this were being funded by the Treasury, the probability is that these concerns would have been acted on. But, as is well known and understood, it is being funded by the profession, which of course means that it will effectively be paid for in due course by the very consumers this supposedly seeks to protect. There is no division of interest between consumers and lawyers about this; rather there is an identity of concern that the regulation of the legal professions should be economical, effective and efficient, and should not comprise layer on layer. I hope that the Government will undertake yet again to reconsider the position which has been taken up to now. I am very concerned that the lead regulators may see their positions being progressively eroded by a Legal Services Board with imperial ambitions. The Government and the noble Baroness have spoken about the lead responsibility resting with the approved regulators, but that is not provided for. Nothing in the Bill will ensure that that will happen. If the Minister cannot reassure the House, I do not doubt that we shall return to this, as will Members of another place.
	There has been an expression of view that to some extent lawyers are the enemies of consumers, one made with great force but, I have to say, not much conviction by the noble Lord, Lord Whitty, whose presence of course we greatly welcome. However, it is not one that is necessarily shared by other protectors of the consumer. Erecting an elaborate and expensive system of regulation is not in the consumer interest. This argument needs to be rehearsed and repeated, and I hope that the Government will acknowledge it and take steps to allay the justifiable concerns which are increasingly being expressed.

Lord Hunt of Wirral: My Lords, I strongly support this amendment and I was pleased to add my name to those of my noble friends Lord Kingsland and Lord Campbell of Alloway, as well as that of the noble Lord, Lord Maclennan of Rogart. Partnership was very much a theme of the Joint Committee. We would like to see the Legal Services Board acting in partnership. The noble Lord, Lord Maclennan, has just raised the important issue of cost, about which one or two rumours are going around. Perhaps we could take the opportunity either in this debate or in a later one to try to put some credible figures to the stories which are running in the press.
	When the Government first looked at the whole issue in the light of Sir David Clementi's recommendations, most of those involved in the process and independent commentators were considering a new, streamlined regulatory system to be put together reasonably quickly which, provided Sir David Clementi's proposals were accepted, would be comparatively economical and thus welcomed by the professions. Indeed, it was Sir David Clementi who could see how a partnership would work. We have had debates about this partnership that have already been referred to, but we are still waiting for the Minister to confirm how the new Legal Services Board will work. Will it rely on the front-line regulators to be in the front-line and not be subject to day-to-day administrative interference? Obviously the Legal Services Board, in complying with the regulatory objectives, has an attitude in principle towards the way that regulation will evolve, but there is still a suspicion that unless we write something into the Bill along the lines of this amendment—and we are going to debate a number of subsequent amendments as well—we may well end up with something that duplicates, indeed triplicates, the existing system, which seems to be working reasonably well at present. The separation of the regulatory and representative functions has worked well, and some of the key individuals involved inspire confidence in the way the whole process is now evolving.
	If one's suspicions about costs—transitional costs in particular—become a reality, one has to question whether it is all in fact worth it. In order to reach a conclusion about that, we need to hear much more from the Minister.

Baroness Ashton of Upholland: My Lords, I am grateful for all contributions. This is an important issue of principle about the relationship between the front-line regulators and the Legal Services Board. The noble Lord, Lord Hunt, is right to raise the issue of cost, and I shall say a little bit about that.
	Let me be clear: there is no hidden agenda. The purpose we have set out for this regulatory framework is exactly the purpose that is replicated in the legislation. Our ambition is to have an overview regulator working with front-line regulators. I am resisting the amendment. We talked a lot in Committee about partnership and about how appropriately to define the relationship, which meant a number of things to noble Lords and to those organisations that were most concerned. First, it was important to ensure that the overview was not substituting itself for the work of the front-line regulator. Secondly, we had to ensure that the Legal Services Board operated appropriately against the regulatory objectives but used its ability to use the law to define what it wants to do only when it was necessary—we have talked a lot about that in the context of Clause 1—and to ensure that the dialogue between the front-line regulator and the Legal Services Board was appropriate and proper. We have described it in different terminology, but "partnership" is certainly a word that we have used from time to time to describe it, and I would endorse that.
	My difficulty was how that works when you put it in legislation and the problem of trying to restrain or constrain what the Legal Services Board is enabled to do, in terms of the work it must inevitably take on. We have also talked about our ambition that the front-line regulators operate properly, that the Legal Services Board does not use its powers and so forth, but let us assume for the moment that it must. It is about trying to ensure that it can operate effectively. The difficulty, when we looked at it from a legal perspective, was that, as noble Lords will know from their vast experience, both as Ministers and as legislators, there are problems with how words translate when you try to use them in a legal context, and "in partnership" created some difficulty.
	In my view the B-Plus model of regulation, which was David Clementi's recommendation, is the right one. It accepts that the oversight regulator and those it regulates need to work together in concert as far as possible. My problem with the amendment is the restriction it could impose on the ability to take action when it is considered necessary to correct failure in an approved regulator. That is my difficulty with accepting the proposition. We have to ensure that in the legislation we have the flexibility for the oversight regulator to operate effectively. I completely agree that we do not want the micro-management about which noble Lords are concerned that second-guesses the decisions of approved regulators. I say that for two reasons: first, that is not its job; secondly, there is the cost, as the noble Lord, Lord Hunt, has rightly mentioned and to which I shall come shortly.
	We do not want the Legal Services Board to use its power in a completely unrestrained way. There are clearly defined procedures in the legislation that it must follow, such as requirements for notification and consultation. As we stressed throughout the Committee stage, there is a need to follow best regulatory practice, and it must be proportionate and targeted. It can operate only where there is a clear need for it to do so and it can demonstrate that it must do so.
	As we discussed at length in Committee, Clause 48 requires the board—the word used is "must"—to issue policy statements about how it will use its powers, publish a draft of statements and consider any subsequent representations to be made to it. We believe that that gives approved regulators the opportunity to influence the policy of the board and the framework within which it will operate. I think that the policy statements provide the most appropriate and flexible way for the board to discharge its duties. They will enable the arrangements, in a sense, to be the best practice we can have. It is a requirement—it is not left to chance but is in Clause 48.
	We all recognise that constructive dialogue is essential. I see no reason to suggest in the legislation that that would not happen. I believe that the legal professional bodies will embrace the spirit of co-operation but in the end, the board must be free to act if it feels that it needs to. It may need to take difficult decisions and to take action which, it could be argued—

Lord Campbell of Alloway: My Lords, I am obliged to the Minister for giving way. I have one simple question. There seems to be nothing much between us about the principle at stake as it has been expressed by all noble Lords. Can the noble Baroness conceive of a better way of implementing it than that proposed by the amendment?

Baroness Ashton of Upholland: My Lords, my proposition is that we already do that in the Bill. We have addressed the question in the way in which the board has been set up, the requirement for the way it has to operate, its relationship with the front-line regulators and the requirement for it to issue statements on what it proposes to do to enable the regulators to have discussions with it. We believe that the ambition in the amendment is achieved. Noble Lords who are legal experts, which I am clearly not, will know better than I do that the difficulty in putting in legislation a requirement for how people must behave, in this context in partnership, is the potential for difficulty if the overarching regulator—the supervisory regulator—has to operate in a way that is not in partnership but unfortunately has to take action against a front-line regulator. Discussions with our legal advisers showed that that could be a difficulty. When we reflected on the Bill, we felt that we had captured the essence of what noble Lords were seeking. I hope that my words, in the context of how I have described this, will bring some comfort to the organisations concerned.
	On costs—

Lord Maclennan of Rogart: My Lords, before the Minister speaks about costs, I again draw attention to Clause 48. It is not self-limiting; it sets out what must be done with regard to policy and how the board should exercise its functions. It does not say how they will be exercised in relation to the other front-line regulators. It is encyclopaedic in its potential and does not import into the Bill the kind of balance that has been so clearly expressed by the Minister as desirable. If she were to introduce some form of words that made it clear that that was what she had in mind, it would be much more convincing than resting on Clause 48.

Baroness Ashton of Upholland: My Lords, I was not seeking to rest on Clause 48. The factors in the way that we set up the Legal Services Board—to be proportionate and to act only where necessary—are combined with other issues. The noble Lord, Lord Campbell of Alloway, described this as being threaded through the Bill. The noble Lord sees that in a negative way: perhaps I can be more positive. If you add all of these things together you end up with a relationship between the supervisory regulatory body and the front-line regulators that I believe represents, in large part, what noble Lords are seeking. My difficulty is that there is no way of expressing that in terms that would not constrain the supervisory regulator in an inappropriate way. That is the problem. We think that we have captured it elsewhere with the combination of objectives, the way in which the board has to operate in a proportionate manner and the fact that Clause 48 states that policy statements have to be produced. The combination is what makes that effective. The noble Lord may disagree, but that is what I am trying to achieve. I am not seeking to rest purely on Clause 48.
	I will deal with the costs, as they are an important issue. In earlier stages, we talked about the £26.8 million, if I remember my figures correctly, in the PricewaterhouseCoopers analysis. Noble Lords will know, because I have briefed those on the Front Benches, that we have been doing some additional work. We discussed this with the Law Society and the Bar Council to describe how we thought that the figures would need to change in an upward fashion. Our analysis is that something like £38 million or £39 million is required, with a built-in contingency. Noble Lords will also know that the Law Society and Bar Council raised particular concerns about VAT. With the absolute support of my noble and learned friend the Lord Chancellor, I have undertaken to take those figures away and look again. Before we get to the point of discussing costs on day 3 of Report, my ambition is to come forward with definitive figures for your Lordships to discuss properly. I did not want anyone to be in any doubt about that.

Lord Carlile of Berriew: My Lords, what the Minister has said is welcome. When she comes forward with those figures, will she be in a position to make comparisons between the cost of complaints today and the cost of complaints under the new system? She will be aware that the Bar Council is concerned that what is currently a cheap procedure, and is perceived as giving satisfaction to consumers as well as to the Bar may be replaced by something far more expensive in which the barrister who is complained about ends up paying some costs even though he is entirely innocent of any wrongdoing, which seems totally unjust to the Bar Council and to those practising. Will she be in a position to make the necessary comparisons so that, if the House decides to divide on these matters, we can compare what we have now with what the Government propose?

Baroness Ashton of Upholland: My Lords, I will commit to do that. I completely accept that from the noble Lord's perspective it would be difficult to make that distinction without those comparisons, so I am more than happy to do what he asks. I am sorry that I cannot give the figures now, but quite reasonable issues have been raised. I saw a story in the Times this morning—it may have been in other press as well—and although the figures were not inaccurate, the assumptions about transitional costs were not right. We want to look at them again because we do not believe that they are completely accurate, not least because some genuine issues have been raised. My noble and learned friend has led this in the past two or three weeks and has made it clear that he wants to be certain of the figures before your Lordships debate these questions, for the obvious reason that noble Lords will divide or not depending on whether they think that this is a reasonable issue. Of course, comparisons are important.
	I just want to say a word about the Legal Complaints Service, because the Bar Council has been commended in your Lordships' House for the work that it has done and the Legal Complaints Service sometimes receives a less good press. The Legal Complaints Service wrote to me to say what it had achieved from April 2006 to May 2007. Fifty-nine per cent of its files were closed within three months with a target of 57 per cent and 94 per cent of its files were closed within 12 months with a target of 94 per cent. The Legal Complaints Service wanted me to say that and I think that we should recognise that success in trying to sort out the underlying issues. The regulatory framework that we are putting in place in the OLC is important, but it is worth putting that on the record.
	Of course we will deal with this effectively. My difficulty with including the partnership concept in the Bill is that it changes the relationship too much. We believe that, threaded through the Bill in the different ways that we have expressed the relationship, we have captured what is needed. Noble Lords will make their own minds up on that, but we think that we have achieved what is required. As ever, there is nothing much between us.

Lord Kingsland: My Lords, I am most grateful to the Minister for her reply, although I am of course disappointed by it. In concluding, I shall go back to the text of the Government's response to the Joint Committee. At the risk of irritating your Lordships unduly, I shall read out the relevant paragraph again. The Government said that they agree,
	"that the intention of the Legal Services Board should be to work in partnership with the authorised regulators, leaving them with the responsibility for day to day regulation. The Legal Services Board should exercise its powers only where approved regulators are clearly failing".
	Two important statements stand out here. First, day-to-day regulation of the professions should be in the hands of the approved regulators. That is principle number one; the Minister helpfully nods. Secondly, the Legal Services Board should exercise its powers only when approved regulators are clearly failing. Will the Minister kindly nod again? She has, and I am most grateful. In her response to my amendment, she said that, although it would be desirable for these two principles to be in the Bill, that would not be possible, as it would overconstrain the regulatory activities of the Legal Services Board. That is my understanding of what the Minister—

Baroness Ashton of Upholland: My Lords, I thank the noble Lord for allowing me to interrupt. The point that I was making—though clearly badly—was that, if you included the words "in partnership", I am fearful that it would mean that everything that the board did would have to be in partnership, which would be a constraint. We agree completely on the fundamental principle of the link between the oversight regulator and the front-line regulators. The Bill says that they must act only when it is necessary to act, but if you say that everything has to be done in partnership, the difficulty is, as I understand it, that you then cannot act in a way that might be regarded as not in partnership. Quite the opposite, it is saying to the front-line regulator, "You have done something wrong and we have to change it".

Lord Kingsland: My Lords, I am most grateful. If, rather than tabling the first line and a half of the statement, we tabled as an amendment the whole of the Government's statement and response to the Joint Committee, can I assume that the Government would accept that at Third Reading?

Baroness Ashton of Upholland: My Lords, I would certainly have a look at it. We think that within the different aspects of the legislation that I have described we have captured it anyway. There is an issue whether I can, first of all, convince the noble Lord that the combination of the way in which the oversight regulator has to operate—that is, to be proportionate and so on, as we have discussed—and the fact that he has to issue policy statements under Clause 48 represents a relationship that is threaded through the legislation in a way that makes it clear what that relationship must be. I understand the concerns very well, but I do not know whether there is a form of words saying that the Legal Services Board had to act in partnership that if put in legislation would not in the end constrain the board if it had to do something that was in a sense contrary to the wishes, desires and so on of the front-line regulator—if it had to act in a quite drastic way, although I do not expect it to—and prevent it from doing so.

Lord Kingsland: My Lords, I completely appreciate that. However, I must confess that in Committee, when we discussed this amendment, that matter did not emerge from the Minister's response.

Baroness Ashton of Upholland: My Lords, I have thought about it since.

Lord Kingsland: My Lords, the Minister says with characteristic generosity that since Committee she has thought about it. I am most grateful for her response because, as things stand, apart from statements that she has made from the Dispatch Box, the system of control contained in the Legal Services Bill does not differ in principle from the system in the FSA Act. The philosophy behind it may have been expressed differently by the Government, but if you look at the black letter law, it looks in the Bill as if the LSB is a direct regulator.
	This should be of concern to the noble Baroness not only because it appears not to reflect what the Government want, but because if an amendment of the sort that I suggest is not made to the Bill and the Legal Services Board turns out to act as a direct regulator, the costs of this system will be absolutely astronomical. That would rebound very much against the Government's political interest. It is in the Government's political interest that this legislation is delivered at the minimum cost. It will be delivered at the minimum cost only if the Legal Services Board is a restrained supervisor of other regulators. If the board gets into the business of direct regulation, it is very hard to see where the spending will end. This measure is very much in the interests of the Government, as well as those of us in opposition who believe that the position that the Government seem to have adopted in their response to the joint approach is correct.
	I will consider tabling this statement as a full amendment at Third Reading. I am encouraged by what the noble Baroness said. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland: moved Amendment No. 30:
	Clause 3 , page 2, line 26, leave out ", as far as is reasonably practicable,"

Lord Kingsland: My Lords, this is a shorter point. Clause 3(2) states:
	"The Board must, so far as is reasonably practicable, act in a way—
	(a) which is compatible with the regulatory objectives, and
	(b) which the Board considers most appropriate for the purpose of meeting those objectives".
	In my submission, the expression,
	"so far as is reasonably practicable"
	would allow the board to act in certain circumstances of its own choosing that were not compatible with the regulatory objectives; therefore, I have sought to expunge that expression from the Bill.
	In responding to this amendment in Committee, the noble Baroness was worried that flanking damage might be done if the expression,
	"so far as is reasonably practicable"
	were removed, and that it would constrain the board in how it could act because it would take away its discretion to add variable weights to the eight objectives. If that continues to be the noble Baroness's hesitation, I respectfully disagree with her. Although the board must act compatibly with the regulatory objectives, it can attach weight from a very small quantity up to a very large quantity to each of the eight objectives depending on the circumstances of the decision. I beg to move.

Lord Maclennan of Rogart: My Lords, like the noble Baroness, I reflected on our exchanges on this amendment in Committee, particularly on what the noble Baroness said about the circumstances in which it might be necessary to have this qualifying phrase, which on the face of it appears to cut down the duty of the Legal Services Board to have regard to and to comply with the various considerations set out in the regulatory objectives.
	In Committee, the noble Baroness spoke of potential tensions between the different objectives and appeared to seek to address the possible conflict between them in particular cases. That was a perfectly reasonable point. In addressing that reasonable concern, she has introduced into the Bill language that goes much beyond the reconciliation of conflicting objectives in particular cases. She has made it possible for the Legal Services Board to disregard objectives for reasons that are unconnected with the objectives themselves but may be connected with the circumstances that have given rise to the complaints.
	For that reason, it is incumbent on the noble Baroness either to explain why it is necessary in general terms or to come up with language that confines the exclusion clause to the particular circumstances of reconciling different, conflicting objectives. I hope that she will regard that as a constructive suggestion and not as one intended to strike down her arguments, which seem very reasonable; but the response is dangerous.

Lord Hunt of Wirral: My Lords, this debate may be completely unnecessary. In response to the points that my noble friend and the noble Lord have just made, the noble Baroness clearly stated:
	"We will look at this again".—[Official Report, 9/1/07; col. 179.]
	Therefore, we await the result of her researches.
	I agree with my noble friend and with the noble Lord, Lord Maclennan of Rogart, in particular when in Committee he referred to this clause as an "escape clause". Surely, as my noble friend pointed out in Committee, Clause 3(2)(b), which states,
	"which the board considers most appropriate for the purpose of meeting those objectives",
	clarifies the situation. I reread the comments of the noble Baroness in Committee, but that provision already gives the board the flexibility of ensuring that it acts in a way that is compatible with the regulatory objectives. Where there is some tension or conflict between those objectives, Clause 3(2)(b) gives the board the power to consider the most appropriate way of meeting those objectives.
	As I have said, this debate may be completely unnecessary, because the Minister assured us that she was taking legal advice, which is always a slightly worrying comment. We await with anticipation what, having now taken legal advice, she will say.

Baroness Ashton of Upholland: My Lords, I have taken legal advice, as the noble Lord would expect me to, and I have consulted parliamentary counsel on the implications of all the amendments, particularly this one. I wrote to the noble Lord, Lord Kingsland, setting out the difficulties that we felt would be created by the removal of—

Lord Kingsland: My Lords, I apologise, but I have not seen the letter. If the noble Baroness had written to me, it would have been very helpful.

Baroness Ashton of Upholland: My Lords, of course it would. I wrote on 22 March and I have a copy of the letter here. I apologise to the noble Lord if he has not seen it and I shall investigate why that is so. As a result, he cannot possibly anticipate what I am going to say. I will make sure that the noble Lord sees the letter by tomorrow. I remember signing the letter, so it certainly left me, even if it did not arrive with the noble Lord.
	Our legal advice is that the difficulty with removing the "reasonably practicable" qualification is that the first limb, paragraph (a), would impose an absolute requirement on the board to act in a way that is compatible with all the regulatory objectives in respect of every regulatory decision that it took. The second limb, paragraph (b), would impose an absolute requirement on the board to act in a way that it considered was most appropriate for meeting all those objectives in respect of all of its decisions. From noble Lords' comments on the purpose of the amendment, I do not believe that that is what they seek; however, parliamentary counsel tells me that that would be the effect of the amendment.
	I think that we are all agreed on the ability of the board to look at the objectives, to weigh them up and to use the "reasonably practicable" qualification in that context. The clause is not saying what I think the noble Lord, Lord Kingsland, fears it says—that if you cannot make the regulative objectives work in this context you can do something else; in other words, if they are not reasonably practicable you can behave in a manner outside their scope. I am reliably informed that the clause as constructed would not enable that.
	The clause says that you have to operate within regulatory objectives but you can weigh up what you are doing; you have to look at the context of the objectives and consider what the board does to ensure that they are met. As we have discussed in the context of Clause 1, that will mean that you can balance the objectives depending on the decision you are making and act accordingly. That was, in a sense, the alternative proposal to creating a hierarchy by attaching a different weight to different objectives when making particular decisions.
	That was the advice that I received. I had sought it at length, because I made a commitment to do so. It suggests that the noble Lord need not worry about enabling the board to operate outside the objectives. Those fears are unfounded; it cannot do that. The board, while operating within the objectives, must balance those objectives appropriately, as noble Lords seek.
	I reject the amendment because it does not work in practice; it prevents the board from balancing the objectives effectively. We all agree that we want the board to be able to balance the objectives on a case-by-case basis, depending on the decision. According to parliamentary counsel and the legal advice I have received, the clause does not achieve what the noble Lord fears—enabling the Legal Services Board to operate outside the objectives.

Lord Kingsland: My Lords, I am most grateful to the noble Baroness. I look forward to reading her letter. Until I do, I cannot respond to the arguments of parliamentary counsel; but I can still say that the words of Clause 3(2) seem to say to me, quite clearly, as they do to the noble Lord, Lord Maclennan, that if, in the subjective judgment of the Legal Services Board, it considers that it is not "reasonably practicable" to act in a way that is compatible with the regulatory objectives, then it can act in a way that is not. Without having received the learned opinion of parliamentary council, that seems to me the position. If it is, I am sure that the noble Baroness would be very unhappy about it.

Baroness Ashton of Upholland: My Lords, I have handed over a copy of the letter, and I apologise to the noble Lord; we will get the right version to him. If that was what the clause did, I would change it, but it does not do that and therefore I do not change it.

Lord Lyell of Markyate: My Lords, perhaps I may ask the noble Baroness one question. Would she be prepared, with the assistance of her advisers, to give us one or two examples of where this would be impossible? I suspect that it would be perfectly possible and that the words that my noble friend is seeking to remove are otiose.

Baroness Ashton of Upholland: My Lords, in the light of the fact that the noble Lord, Lord Kingsland, has not had my letter, I am concerned that other letters may not have been received, despite the fact that I signed them before I went away. Therefore, I shall seek to write again to noble Lords setting out this matter clearly.
	There is nothing between us on this. The clause is intended to enable balancing of the objectives but it is not intended to enable the Legal Services Board to operate outside the objectives. I take very seriously the fact that noble Lords with great legal experience have looked at this issue, but I have gone as far as I can in seeking legal advice to ensure that the clause does not enable the board to operate in that way. Perhaps it would be better if I set out again why we are clear about this, and noble Lords can come back at Third Reading if they think that I have not achieved that.

Lord Kingsland: My Lords, I am most grateful for the noble Baroness's response. In those circumstances, I think that we can only wait for her letter and consider the matter again. If we remain as unconvinced as we are at the moment, no doubt we can come back to it at Third Reading. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Ashton of Upholland: moved Amendments Nos. 31 and 32:
	Clause 3, page 2, line 33, at end insert "and"
	Clause 3, page 2, line 35, leave out from "practice," to end of line 36
	On Question, amendments agreed to.
	[Amendment No. 33 not moved.]

Lord Kingsland: moved Amendment No. 34:
	Clause 3, page 2, line 36, at end insert—
	"(4) In assessing what is proportionate in the regulation of approved regulators the Board shall have regard, inter alia, to:
	(a) the regulator's resources (including voluntary resources); (b) the effect on regulatory fees; (c) the extent to which the Board's acts might discourage entry to or retention in the regulated sector; (d) the extent to which the number of persons regulated by a regulator might be reduced in consequence of the Board's acts; (e) the extent to which the regulator might be disadvantaged and another regulator might derive an advantage, in particular through the movement between regulators of regulated persons as a consequence of the Board's acts."

Lord Kingsland: My Lords, this amendment deals with proportionality. Your Lordships will recall that this was a central theme in the Committee stage debate and, indeed, it is a constant thread running through the Bill.
	In our submission—I believe that the Government concur with this view—regulation should be both risk-based and proportionate. I have heard the Minister emphasise that on more than one occasion. The question is how to ensure that the drafting of the Bill guarantees that the Legal Services Board acts proportionately.
	As things stand, the Legal Services Board appears to be more or less free to make its own determination of what is or is not proportionate. I accept that proportionality depends on the circumstances of the case but we believe that the Bill would benefit from the inclusion of at least a non-exhaustive list of key factors that the Legal Services Board should take into account when exercising its regulatory function. In other words, our amendment does not define proportionality but it sets out particular factors which the board should have regard to when assessing what is proportionate in the regulation of approved regulators.
	I know that the noble Baroness is well seized of the anxieties of the regulators that are responsible for the world of patent and trade marks. I believe she understands that these small approved regulators fear that, because the LSB is likely to spend a great deal more of its time dealing with the larger approved regulators, it may overlook their limited resources, their low-risk status and their strong track record for good conduct.
	There is a perceived risk—at least by them—that regulation may encourage practitioners to operate, as they can in those two areas, outside the regulated sector. That would have the knock-on effect of driving up costs for remaining members and potentially making the regulators' position untenable.
	I understand that in recent correspondence with the two institutes, the Minister stated that the Government were,
	"entirely in agreement that 'one size does not fit all'",
	and that a proportionate approach should be taken by the Legal Services Board.
	I understand that the Minister also stated in correspondence that,
	"the Legal Services Board will need to recognise the position of smaller regulators ... when exercising functions under the Bill. In doing so, the Board will need to have regard to a number of factors which may include entry and retention of regulated persons to the sector and the effect on fees".
	Yet, there is no obligation in the Bill that the Legal Services Board must have regard to such vital issues as entry and retention of regulated persons, and the effect on fees, not to mention the resources of the regulator. We have been told that the Minister,
	"will look carefully at whether guidance is a more appropriate way to define what is meant by proportionality in the context of legal services".
	We hope that the Minister will accept this amendment as it stands. We would be reassured to some degree by an undertaking that there will be guidance and an indication in general terms of what that might cover. That at least would set out some of those key factors in assessing proportionality. I also suggest that a commitment to guidance on proportionality at this stage might address some of the plainly abundant fears and concerns regarding the levy—a subject to which, as the noble Baroness knows, we shall be arriving, at some stage in the next few weeks. I beg to move.

Lord Campbell of Alloway: My Lords, I support the amendment. As my noble friend says, there is no guarantee. Nothing in the Bill requires a proportionate decision, but in a sense there does not have to be because the decisions of any of the regulatory bodies, as I mentioned on Amendment No. 5, are subject to judicial review. As part of the discretionary judicial process today, judicial review includes proportionality. The amendment is helpful in indicating to what, in particular, regard should be had. I support it in principle on the basis that it would be subject to judicial review if it were disproportionate in any event.

Lord Maclennan of Rogart: My Lords, in the earlier debate in Committee, the Minister indicated that she thought that proportionality might best be dealt with in Clause 48, with a statement of principle on what was meant by "proportional". She indicated that it was not possible to treat comprehensively within the legislation itself the circumstances in which the board would be required to act with proportionality. That has some attraction, in so far as it would no doubt spell out the circumstances, and could take particular account of some of the concerns expressed to us by, for example, the Chartered Institute of Patent Attorneys. It is not wholly reassuring, however, because such a statement of principle would not have the force of law. The Minister's point that it would be neither appropriate nor possible to be comprehensive has been taken on board by the noble Lord, Lord Kingsland, in importing into the amendment the indication that the principle should have regard, inter alia, to particular circumstances. It is not intended to be comprehensive, but addresses some of the major concerns. It is therefore a worthwhile amendment.
	The concerns of the small regulatory bodies which have approached us—that their work may be taken over by other bodies less equipped to deal with the regulation of the specialist services that they provide—seem fairly made. Indeed, the Minister indicated that she had not at that stage heard directly from them and that she hoped and expected to do so. Perhaps she has had time to reflect on the arguments made by those bodies whose interests this amendment particularly deals with.

Lord Lyell of Markyate: My Lords, briefly, I support the amendment. It deals with the important question of cost and how it might be possible that ill advised regulation drove those regulated away from one body and into the arms of another which might do a less good job. It would be comforting if the Minister could satisfy us that other parts of the Bill ensure that the board and regulators do not feel obliged to act in that way. My noble friend Lord Kingsland expressed this as a probing amendment to some extent. It is a sensible probe and I look forward to the Minister's answer.

Baroness Ashton of Upholland: My Lords, I am grateful for this further discussion. I have met with the smaller regulators, and we had what I thought was a useful and helpful discussion—not least, perhaps, in exploding a few myths which they held about this legislation.
	The critical aspect of proportionality is in Clause 3(3), which says that the board,
	"must have regard to ... the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed".
	Proportionality is a critical theme of this legislation. It is essential to ensure that proportionality is a key factor in everything that the board does. We have made it perfectly clear to the smaller regulators, trade mark attorneys, patent attorneys and so on that this is essential. We would absolutely expect the board to behave appropriately and take into account the size of the body, the nature of its work and so on. That factor is captured within Clause 3(3).
	The difficulty with trying to define proportionality is that you come upon that magic word "list". Noble Lords will know that I have a particular aversion to lists, which I acquired early in my ministerial life. The minute you put a list down, you lose out because you forget to put something in, or you define or constrain issues far too closely for the purposes of legislation. So I do not want to try to define "proportionality". I spoke to legal advisers, parliamentary counsel and so on. It is clear that behaving in a proportionate manner is very well defined. It can be challenged in law. It is very clear what people are expected to do. It is essential for sworn regulators to feel confident about that.
	It is absolutely appropriate that if the Legal Services Board wishes, it can issue guidance. Having read our debates—I am sure that those involved will do so—and having heard from Ministers and officials about the issues of concern, it will be very keen to make sure that it is demonstrating it is behaving in a proportionate way. The Government can issue guidance but they do not in any way prevent the board from ignoring it. I would rather the board looked at this issue in the context of Clause 3 and said: "We have to be proportionate. What does that mean? How does that affect the decision?". Noble Lords will know that although it is a very obvious concept, it is different depending on the decision made, the circumstances and what was happening at the particular time. But it is challengeable, and that is the critical and important part of it.
	Therefore, I resist the amendment because I think that we have the provision within the legislation. The body can indeed issue policy statements on it if it so wishes. I cannot define that for it. It would be wrong to try to do so because I am sure that any definition, however good it is, will fail to address the circumstances that may arise for the Legal Services Board. On that basis, I resist the amendment, but not because I disagree with the spirit behind it.

Lord Kingsland: My Lords, I thank the noble Baroness for her response. I know that she has been in correspondence with the smaller regulators. It struck me from that correspondence that she has given them some encouragement to believe that the Government are sympathetic to what they are asking for.
	I accept that the noble Baroness is reluctant to put in the Bill examples or particular factors to which the board should have regard. At the end of my opening, I suggested an alternative approach. I suggested that the noble Baroness might like to consider guidance as to how the Legal Services Board might approach the question of proportionality. The Government must know what they mean when they insert the word "proportionality" in the Bill. If the Government are saying that they do not know how the concept should be applied, the concept should not be in the Bill at all. If the Government do know how it should be applied, aside from the fact that plainly nobody can anticipate exactly the specific circumstances, they must have an idea how they expect the Legal Services Board to approach the issue. For the Government to say that they know how it should be applied and then to say, "We are not going to tell you. Let us wait and see what the Legal Services Board is going to do"— if that is the Government's position—is deeply irresponsible.

Baroness Ashton of Upholland: My Lords, I am not attempting to be at all irresponsible. We are setting up a professional Legal Services Board. It will be a body of the highest possible calibre, charged with the responsibilities that it must undertake. One of those responsibilities will be that it must behave in a proportionate manner. I would expect an institution of high calibre to be able to work out what that means in individual sets of circumstances. The Government can come up with a list of things. They can offer guidance and whatever if they so wish. The Legal Services Board can ignore that if it so wishes, too. It is an independent body; it has been charged with being proportionate in its activities.
	I met the smaller regulators on 5 February to discuss these issues. The Legal Services Board will have to take into account in all it does that it must behave proportionately, consistently and so on. So I have greater faith in its ability to operate as an organisation in that way. That does not mean that there would be any distinction between the noble Lord, Lord Kingsland, and me if we were faced with decisions about how we would regard the concept of "proportionate". I just think that it is a word that has very clear meaning in the way that we approach decisions, and one with which noble Lords will be very familiar in all their activities. The noble Lord himself always operates in a very proportionate way.
	I do not believe that we can gain very much by doing more. I may consider guidance, but I am trying to be realistic and honest. If we are setting up a professional board and giving it clear ways in which it must operate, I am not sure that I would add much to that. That is my difficulty.

Lord Kingsland: My Lords, I am most grateful to the noble Baroness. She said that if the Government issued guidance, they would have no control over whether the Legal Services Board responded to it. I am greatly surprised to hear her say that. Clearly she could issue guidance requiring the Legal Services Board to have regard to that guidance. There is no reason why she could not do that. Will she consider that approach?

Baroness Ashton of Upholland: My Lords, I would be delighted to consider that approach. The noble Lord knows that I am always reasonable. I was making the point that if we set up an independent body and give it, in legislation, the context in which it operates, the noble Lord must be able to think of instances in which he would not want the Government to come in to give guidance about what the body should do and how it should interpret aspects of legislation, because of the problem of independence that might arise for the organisation. That was the point that I was trying to make. We must be clear that if we set up a body to be independent, independent it must be. There is the fear that if the Government give it lots of guidance, independence is eroded.
	I think that it will be very clear to a professional body what that means. If it does not act in that manner, it can be challenged, but of course I am prepared to consider guidance where there is any merit in doing so and I will do so.

Lord Kingsland: My Lords, I am most grateful to the noble Baroness. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland: moved Amendment No. 35:
	After Clause 4 , insert the following new Clause—
	"Paralegals
	(1) The Board must assist in the maintenance and development of standards in relation to—
	(a) the training of paralegals employed by authorised or exempt persons, and (b) the proper supervision and monitoring of paralegals employed by authorised or exempt persons.
	(2) For the purposes of this section a "paralegal" is a person who, whilst not a lawyer as defined by this Act, provides legal advice, support, assistance or representation."

Lord Kingsland: My Lords, I can be extremely brief in introducing this amendment. It raises the status of paralegals. We talked about this at some length in Committee. I simply want to know whether the Government intend, by amendment, to include paralegals as authorised persons under the Bill. I need no more than a yes or no answer. I beg to move.

Lord Evans of Temple Guiting: My Lords, if the noble Lord, Lord Kingsland, would like an answer in one word, the answer is no: we do not plan to include paralegals in the Bill.

Lord Kingsland: My Lords, I am most grateful to the noble Lord. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 6 [Annual report]:

Baroness Ashton of Upholland: moved Amendments Nos. 36 and 37:
	Clause 6 , page 3, line 19, leave out "Secretary of State" and insert "Lord Chancellor"
	Clause 6 , page 3, line 21, leave out "Secretary of State" and insert "Lord Chancellor"
	On Question, amendments agreed to.

Lord Campbell of Alloway: moved Amendment No. 38:
	After Clause 6 , insert the following new Clause—
	"Judicial review
	Administrative decisions made in implementation of this Act shall be subject to judicial review under the jurisdiction of the High Court."

Lord Campbell of Alloway: My Lords, I shall be very brief. I have spoken to judicial review in relation to an authority on which the noble Baroness will obviously wish to receive advice from her advisers. They will have to read 40 pages or more of the transcript. At this stage, I will say only that I am moving the amendment for two reasons. One is because the decision of the Court of Appeal makes it clear that judicial review is available under the aegis of the High Court. That ought to be written into the Bill. The other reason that I am moving the amendment is to give an opportunity for the noble Baroness to give advice on what I have said. I beg to move.

Baroness Ashton of Upholland: My Lords, although it is essential, as the noble Lord will recognise, that the board can discharge its regulatory duties effectively, it is equally important that there is an opportunity to contest the board's decision where it has acted illegally, improperly or otherwise irrationally. Other than in the case of the board's power to fine, for which separate provision is made in the Bill as noble Lords will know, I believe that judicial review is the correct remedy in these instances. I have consistently made it clear to the noble Lord, Lord Campbell of Alloway, and to your Lordships' House that, the decisions of the board and those of the OLC and the approved regulators as public bodies will be subject to judicial review.
	My concern with the noble Lord's amendment is that by setting out in the Bill that judicial review is available on,
	"Administrative decisions made in implementation of this Act",
	we could create uncertainty—I have taken good legal advice on this—as it is unclear where the boundaries lie that separate administrative decisions that are taken in implementing the Act and other administrative decisions taken by the board and the approved regulators. This may run the risk of inadvertently narrowing the court's discretion. It is therefore very important that judicial review is available but is not constrained, as unfortunately it would be if the amendment were accepted.
	Clause 7 is an important clause that allows the board to carry out functions that are in effect ancillary to the conduct of its principal regulatory functions. It is about contractual arrangements for staffing, IT, procurement and so on, and if we took it out, we could reduce the board's ability to discharge its duties. It is a standard provision. I could cite a number of Acts in which noble Lords will find it: the Access to Justice Act 1999, the Communications Act 2003, the Energy Act 2004, the Enterprise Act 2002 and the Companies (Audit, Investigations and Community Enterprise) Act 2004. It does not mean that the board can do anything that it feels like; it is about ancillary functions of the kind that I have identified which it may wish to carry out. I hope that the noble Lord will feel reassured that judicial review is available in the way I suggested, and that his amendment would constrain the ability to use it in a way that I am sure he would not wish.

Lord Campbell of Alloway: My Lords, I am obliged to the Minister. I would like the opportunity to consider with care everything that she has said. The words,
	"in implementation of this Act",
	are essential qualifying words to include an administrative decision that is the subject of judicial review. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting: My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.
	House adjourned at 9.53 pm.